Understanding Statutes

UNDERSTANDING STATUTES by V.C.R.A.C. CRABBE

First published in Great Britain 1994 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 071-278 8000 Facsimile: 071-278 8080

© Crabbe, V 1994

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the publisher and copyright owner. The right of the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988. Any person who infringes the above in relation to this publication may be liable to criminal prosecution and civil claims for damages.

British Library Cataloguing in Publication Data

Crabbe, Vincent Understanding Statutes I Title 344.20822

ISBN 1 85941 138 X Printed and bound in Great Britain

DEDICATION

To all those who try to understand an Act of Parliament...

Preface Lord Denning complained that, of the many books that have been written on the subject of the interpretation of statutes, ‘all [are] for the old hand. Not one [is] for the beginner.’1 It is the intention of this little book to make good that challenge, to attempt to explain to the beginner how to understand statutes. The interpretation of an Act of Parliament demands an understanding of the Act, which should be based upon a number of factors. Perhaps the starting point would be a command of the language in which the Act is drafted. Yet a mere command of the language would not be enough. Acts of Parliament are not enacted for the fun of it – they are intended to solve the problems of governments and of societies. That background knowledge – of the problems and the solutions for the problems – is an essential prerequisite to an understanding of an Act of Parliament. The ‘four things … to be discerned and considered’ as stated by the Barons of the Exchequer in Heydon’s Case2 are still germane to an understanding of an Act of Parliament. The processes through which a Bill passes on its way to the Statute Book are also important. A Bill is drafted with the debates in Parliament in mind. Parliamentary procedure thus influences the language of the Bill and ultimately the language of the Act, which may require interpretation. It should also be borne in mind that the language used in an Act of Parliament is intended to express in law a policy or a set of ideas or values thought necessary for the achievement of certain goals. Yet the idea that the ‘reasonable man of the law’ will easily understand an Act of Parliament is an illusion – not because the Act is badly drafted, nor that the language used is frightfully complicated, but because a knowledge of the subject-matter of the Act may be woefully lacking. In all walks of life to understand anything demands more than a mere knowledge of what a thing is or is supposed to be. Cricket is a game. Football is a game. The rules applicable to cricket are not the same as those which apply in football. To understand the game of cricket or of football an understanding of the nature of the two games, as well as how the game is played, is essential. So it is with an Act of Parliament. In addition, it is as well to note that an Act of Parliament is a form of communication, a communication which tells its audience what to do or what not to do. Herein lies the importance of the language in which the command or the prohibition is stated. The basic rules of the language must be understood. So must the nuances of that language. And since the basic unit of any language is a word, words and their meanings constitute an important factor in the use of language. That __________________________________________________________________________________________________________________________________________

. 1

The Discipline of Law, p.9.

2

(1854) 3 Co. Rep. 7a; 76 ER 637.

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Preface

is why an Act of Parliament is construed so as to give a meaning to the words used in the Act. For, as stated by the Judicial Committee of the Privy Council in Ditcher v Denison,3 It is a good general rule in jurisprudence that one who reads a legal document whether public or private, should not be prompt to ascribe – should not, without necessity or some sound reason, impute – to its language tautology or superfluity, and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. Case law has played – and will continue to play – a very important part in the interpretation or construction of an Act of Parliament. Though Interpretation Acts have helped in the process, case law is still the dominant sphere wherein lie all the rules the courts have evolved for the interpretation or construction of an Act of Parliament. An Interpretation Act is indeed in most cases, a codification of the rules of interpretation or of construction, but it only applies where there is no contrary intention. That contrary intention will be discerned, when necessary, by the courts. When that is done, an Interpretation Act ceases in its function to aid in the process – the decisions of the courts will hold sway. For this reason the words of the Judges have been relied upon, in some cases extensively, to tell their own story. No better knowledge can be gained than by reading what Judges have said -and continue to say – sometimes out of court. This is primarily a student’s book and reading the judgments is in itself part of the educative process that equips the student with the requisite knowledge and is the one sure way to learn the law. Students should not find – nor should they consider – reading judgments tiresome. To understand an Act of Parliament one needs to understand what the Judges say about the language of legislation. Those who draft legislation bear in mind what the courts have said or are likely to say. The courts and the Judges are the audience of last resort. In a way this book is an attempt to answer at least some of the questions which students in legislative drafting ask. It is thus linked to legislative drafting, and certain areas which may be considered more appropriate to a book on legislative drafting are, nonetheless, reproduced here in an attempt to give the student a complete picture. This should obviate the necessity of having to go to another source for a required information. One avoids, if one can help it, anything in the nature of referential legislation. My thanks go to my former students, who still communicate with me and make valuable suggestions. Each set of students brings its own set of new knowledge, new problems, new answers. Without reservation or equivocation I acknowledge the debt I owe all of them. I must thank Miss Novellette Kidd __________________________________________________________________________________________________________________________________________

. 3

(1857) 11 Moore PC 325 at p.337.

Preface

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who read some of the proofs and made valuable suggestions. Mr Sampson Owusu of the Faculty of Law, as usual, has been very helpful with the computer. So also must I acknowledge with gratitude the criticism of my colleagues. It is a help not a hindrance. I am very grateful to the Oxford University Press for allowing me access to articles published in the Statute Law Review; to the Incorporated Council of Law Reporting for England and Wales for permission to quote from the judgments published in the Law Reports, King’s Bench, Queen’s Bench, Appeal Cases, Chancery and Family Divisions, the Weekly Law Reports and the Industrial Cases Reports; to Butterworths & Co. Publishers, for permission to quote from the judgments published in the All England Law Reports and to Juta and Company for permission to quote from the South African Law Reports. Their readiness to grant permission has been a source of inspiration. I remember with sincere gratitude all my mentors – past and present. I thank sincerely the many authors from whose works I have gained knowledge, some of whom are mentioned in the Bibliography. I am also grateful to Ms Jo Reddy and Mr Sonny Leong of Cavendish Publishing Ltd. for their assistance in many ways. My special thanks go to Kim Harris who compiled the Index. Yet again my secretary, Mrs Iris Hinds, has been an angel. She has brought to the work her usual patience, skill and dedication which made my task easier. To members of my family and to all friends, seen and unseen, I give special thanks. And to those whom I have overlooked, or could not get in touch with, my very sincere apologies and my very warm thanks. V.C.R.A.C. Crabbe Faculty of Law Cave Hill June 1994

CONTENTS Page Preface..................................................................................................................i Table of Cases....................................................................................................vii Table of Statutes.................................................................................................xv CHAPTER 1............................................................................................................1 INTRODUCTION.........................................................................................1 What is a statute?.........................................................................................1 The Genesis – the formulation of policy ....................................................2 The Process – the drafting of legislation ....................................................5 The language – legal language....................................................................6 The progress – the stages in Parliament ...................................................14 Words – meaning, ambiguity, vagueness, etc...........................................25 The purpose – communication..................................................................44 CHAPTER 2..........................................................................................................19 THE FUNCTION OF THE COURTS .....................................................19 Interpretation and construction less legislation ........................................49 The validity of an Act of Parliament.........................................................52 Obsolete Acts of Parliament .....................................................................58 The whole Act ...........................................................................................59 The problems of the binding authority of precedent ................................62

CHAPTER 3..........................................................................................................67 INTERPRETATION BY PARLIAMENT ...............................................67 The interpretation section..........................................................................67 The Interpretation Act...............................................................................68 The dictionary ...........................................................................................73 Subsequent Acts of Parliament .................................................................74 Parliament as a court .................................................................................78

CHAPTER 4..........................................................................................................81 THE GENERAL RULES OF INTERPRETATION ....................81 General ......................................................................................................81

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The mischief rule.......................................................................................82 The literal rule ...........................................................................................85 The golden rule .........................................................................................86 The intention of Parliament ......................................................................89 The modern approach ...............................................................................96 Extrinsic aids to interpretation ..................................................................97

CHAPTER 5........................................................................................................119 PRESUMPTIONS...........................................................................119 Consistency .............................................................................................119 Consolidation Acts..................................................................................120 Reasonableness of an Act – avoidance of injustice ...............................121 Alteration of the existing law. .................................................................129 Retroactive and retrospective operation of statutes ................................166 Conformity with the rules of international law ......................................172 Action or conduct lawful ........................................................................174 Application to Crown or Republic..........................................................175 Words to have the same meaning............................................................176 Territorial operation ................................................................................176 Surplusage ...............................................................................................177 APPENDICES ......................................................................................................189 APPENDIX A ..................................................................................189 Classification of Statutes.........................................................................189 APPENDIX B ..................................................................................195 A Bill for an Interpretation Act...............................................................195 APPENDIX C ..................................................................................223 Bibliography............................................................................................223 INDEX ...............................................................................................................227

Table of Cases Alder v. Deegan 167 N E 705 ...................................................................................40 Allen v. Whitehead [1930] 1 KB 211 .....................................................................127 Allgood v. Blake (1873) LR 8 Ex 160 ......................................................................87 Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147................................................37, 145, 151-154, 165 Armstrong v. Clark [1957] 2 QB 391 .........................................................................8 Ash v. Abdy (1678) 3 Swan 644.............................................................................100 Assam Railways & Trading Co. Ltd. v. Inland Revenue Commissioners [1935] AC 445 .....................................................................51, 105 Assessor for Aberdeen v. Collie 1932 SC 304..........................................................78 Attorney-General for Canada v. Hallett & Carey Ltd. [1952] AC 427...................122 Attorney-General for Northern Ireland v. Gallagher [1963] AC 349 .......................86 Attorney-General v. Bradlaugh (1885) 14 QBD 667..............................................124 Attorney-General v. Carlton Bank [1989] 1 KB 64................................................123 Attorney-General v. Duke of Richmond and Gordon [1909] AC 466......................12 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 .......................................................................73, 182, 187 Attorney-General v. Maksimovich (1985) 4 NWLR 300 .......................................105 Attorney-General v. Ryan [1980] AC 178......................................................152, 165 Attorney-General v. Antigua Times [1976] AC 16 ..................................................35 Attorney-General v. GE Ry (1879) 11 Ch D 522 .....................................................20 Attorney-General v. Lamplough (1878) 3 Ex D 214 ................................................24 Auchterarder Presbytery v. Lord Kinnoull (1839) 6 Cl & F 646............................177 Baker v. Jones [1954] 1 WLR 1005........................................................................147 Barber v. Pigden [1937] 1 KB 664..........................................................................138 Barraclough v. Brown [1897] AC 615.............................................................160-161 Bayliss v. Roberts (1989) Simmon’s Tax Cases 693................................................35 Beswick v. Beswick [1968] AC 88 ...................................................................89, 120 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810.........................84, 98, 105, 108 Blackburn v. Flavelle (1886) 6 App. Cas. 628........................................................183 Blake v. Attersoll (1824) 2 B & C 875 ..................................................................185 Bloxham v. Favre (1883) 8 P D 101 ...............................................................172, 177 Bourne v. Keane [1919] AC 815...............................................................................62 Bourne v. Norwich Crematorium Ltd [1976] 2 All ER 576 .............................40, 182 Brown v. Board of Education (1954) 347 US 483, 74 S Ct 689, 98 L Ed. 873 ...............................................................................9 Burchell v. Thompson [1920] 2 KB 80.....................................................................25 Bywater v. Brandling (1828) 7 B & C 643 ..............................................................60 C & J Clark v. Inland Revenue Commissioners [1973] 2 All ER 513....................134 Caledonian Railway v. North British Railway (1881) 6 App. Cas. 114 ...................86 Callady v. Pilkinton (1707) 12 Mod. 573. ................................................................91 Campbell’s Trustees v. Police Commissioners of Leith (1870) LR 2 HL (Sc) 11........................................................................................43 Canada Southern Railway v. International Bridge Co. (1883) 8 App. Cas. 723 ................................................................................185 Carter v. Bradbeer [1975] 1 WLR 1204....................................................................27 Case of Proclamations (1611) 13. 12 Co. Rep. 74 ....................................................92

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Casement v. Fulton (1845) 5 Moore PC 130 ............................................................76 Chandler v. DPP [1964] AC 763...............................................................................21 Chapman v. Chapman [1954] AC 429......................................................................80 Chemicals Reference [1943] SCR 1 .......................................................................159 Chisholm v. Doulton [1899] 1 QB 20.....................................................................127 Chitambazam v. King Emperor [1947] AC 200 .....................................................158 Christie, Manson & Woods v. Cooper [1900] 2 QB 522........................................127 City of London v. Wood (1701) 12 Mod. 669 ..................................................53, 130 Coleshill and District Investment Co. Ltd. v. Minister of Housing and Local Government [1968] 1 All ER 62 ....................................186 Colonial Bank of Australia & Other v. William (1874) LR 5 PC 417....................150 Commber v. Berks JJ (1882) 9 QBD 17 ...................................................................19 Commissioner for the Special Purposes of Income Tax v. Pemsel [1891] AC 531 ...............................................................................72 Cooke v. New River Co. (1888) 38 Ch D 56 ...........................................................65 Cooney v. Covell (1901) 21 NZLR 106..................................................................186 Corkery v. Carpenter [1951] 1 KB 102...............................................................8, 183 Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd. [1898] AC 631 . .....................................................................186 Czarnikov v. Roth, Schmidt & Co [1922] 2 KB 478 ..............................................147 Davis v. Johnson [1979] AC 264...............................................................97, 102-103 Day v. Savadge (1614) Hob. 85 at 87 .......................................................................53 Dean v. Green (1882) 8 PD 79..................................................................................25 Dickson v. R (1864-65) 11 HL Cas 175 .................................................................181 Director of Public Prosecutions v. Schildkamp [1971] AC 1 ..................91, 120, 187 Dixon v. Caledonian Ry Co. (1882) 5 App. Cas. 820 ............................................181 Donoghue v. Stevenson [1932] AC 562 ...................................................................45 DPP v. Nasralla [1967] 2 AC 238...........................................................................138 Duke v. GER Reliance Ltd. [1988] 1 All ER 626.....................................................94 Duport Steel Ltd. & Ors v. Sir & Others [1980] 1 All ER 529...........................53, 88 Dyson Holdings Ltd. v. Fox [1976] 3 All ER 1030 ..................................................39 Ealing LBC v. Race Relations Board [1972] AC 342 ..............................................96 Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111................................125 Eastman Photographic Materials Co. Ltd. v. Comptroller of General Patents [1898] AC 571.......................................................................105 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710......................................................................................53, 130 Edinburgh and Glasgow Ry v. Linlithgow Magistrates (1859) 3 Macq, H.L., (SC) 691 ............................................................................19 Edwards v. Porter [1925] AC..................................................................................186 Ellerman Lines v. Murray [1931] AC 126 ................................................................86 Equitable Life Assurance Society of USA v. Reed [1914] AC 587 ......................122 Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL) .............................................94 Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1 ...........................21 Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 ...................................13 Everard v. Poppleton (1884) 5 QB 181 ..................................................................183 Ex p. Copeland (1852) 22 LJ Bank 17.................................................................74-75 Ex p. Cox (1887) 20 QBD 1 .....................................................................................65

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Ex p. Davis (1857) 5 WR 522 ..................................................................................29 Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 .............................................................60 Eyston v. Studd (1574) 2 Plowden 459 ....................................................................83 Fairmount Investments Ltd. v. Secretary of State for the Environment [1976] 1 WLR 1255 ................................................................165 Farrell v. Attorney-General of Antigua (1979) 27 WIR 377 ..................................163 Fielden v. Morley Corporation [1899] 1 Ch 1 ..........................................................19 Floor v. Davis [1979] 2 All ER 677..........................................................................25 Fordyce v. Bridges 1 HL Cas. 1..............................................................................187 Fothergill v. Monarch Airlines [1891] AC 251 ..........................................84, 98, 106 Fraser v. City of Fraserville [1917] 34 DLR 211....................................................148 Fry v. Inland Revenue commissioners [1959] 1 Ch 86 ............................................88 Funning v. Board of Governors of the United Liverpool Hospitals [1933] All ER 454 .............................................................................105 Gartside v. Inland Revenue Commissioners [1968] AC 553 ..............................87-88 Giffels & Vallet v. The King [1952] 1 DLR 620............................................119, 176 Gilchrist v. Interborough Rapid Transit Co. 279 US 159, 49 S Ct 282, 73 L Ed. .......................................................................40 Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137 ....................................125 Great Western Railway Co. v. Swindon and Cheltenham Extension Railway Co (1884) 9 App. Cas. 787 ..............................186 Green v. R (1876) 1 App. Cas. 573.........................................................................180 Greenwood v. Whelan [1967] 1 All ER 296.............................................................39 Grey v. Pearson (1857) 6 H.LC 61; 10 ER .........................................................82, 86 Griffith v. Barbados Cricket Association (1989) 41 WIR 48 .................................149 Hadmor Productions v. Hamilton [1982] 2 WLR 322............................................102 Hammersmith Ry v. Brand (1869) 4 HL 171 .........................................................139 Handley v. Handley [1891] P 124...........................................................................138 Hanlon v. The Law Society [1980] 2 All ER 199.....................................................25 Harcourt v. Fox (1693) 1 Show 506........................................................................177 Harrikissoon v. Attorney-General of Trinidad and Tobago [1981] AC 265 .................................................................................161 Hartnell v. Minister of Housing and Local Government [1965] AC 1134 7 .............................................................................88 Healey v. Minister of Health [1954] 2 QB 221.......................................................160 Helby v. Rafferty [1978] 3 All ER 1016...................................................................39 Helvering v. Gregory 69 F 2d 809 ............................................................................29 Heydon’s Case (1584) 3 Co. Rep. 7a; 76 ER 637 ...................5, 49, 51, 81-83, 93, 97 Hill v. Grange (1557), 1 Plowden 164 .....................................................................83 Hill v. William Hill (Park Lane) Ltd [1949] AC 530 .............................................177 Hobbs v. Winchester Corporation [1910] 2 KB 471...............................................127 Holmes v. Bradfield Rural District Council [1949] 2 KB 1 ...................................121 Houston v. Burns [1918] AC 337 .............................................................................25 Howard v. Bodington (1877) 2 PD 203 ..................................................................184 Ibralebe v. R [1964] AC 900.............................................................................57, 129 Income Tax Commissioners for City of London v. Gibbs [1942] AC 402...........................................................................................120 Inland Revenue Commissioners & or v. Rossminster Ltd. & Others [1980] AC 952 ......................................................................................53

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Inland Revenue Commissioners v. Hinchy [1960] AC 748......................25, 182, 185 Inland Revenue Commissioners v. Saunders [1958] AC 285.................................124 Institute of Patent Agents v. Lockwood [1804] AC 347 .................................156-157 James v. Commonwealth of Australia [1936] AC 578.............................................................................................73, 85, 137, 182 Johnson v. Chief Constable of the Royal Ulster Constabulary [1987] QB 129 ....................................................................155 Joiner v. State Supreme Court of Georgia, 1969 223 Ga. 367, 155 SE 208 ..............................................................................57 Jones v. Department of Employment [1988] WLR 493; [1989] 1 QB 1 ................148 Jones v. Robson [1901] 1 QB 673 ..........................................................................158 Jones v. Soloman (1981) 32 WIR (PC) 375............................................................163 Jones v. Wrotham Park Settled Estates [1979] 2 WLR 132 .....................................80 Kantor v. MacIntyre [1958] (1) SA 45......................................................................77 Kensington Income Tax Commissioners v. Aramayo [1916] 1 AC 215 ................120 Kesavananda v. State of Kerala ALR (1973) SC 1461 ...........................................162 Labrador v. R [1893] AC 104 ...................................................................................19 Le Neve v. Le Neve (1747) Amb 436.................................................................45, 79 Leach v. R [1912] AC 305 ......................................................................................138 Letang v. Cooper [1964] 1 QB 53.............................................................................94 Lincoln College Case (1595) 3 Co. Rep. 586 ...........................................................60 Liverpool Borough Bank v. Turner (1861) 30 LJ Ch 379 ......................................184 Liversidge v. Anderson [1942] AC 206 ..............................................63-64, 157-158 Liyanage v. R [1967] 1 AC 259 P C .................................................................57, 129 London and India Docks Co. v. Thames Steam Tug and Lighterage Co. Ltd. [1909] AC .............................................................................61 London County Council v. Ayelsbury Dairy Co [1898] 1 QB 106 ........................125 London School Board v. Jackson (1881) 7 QBD 502 ..............................................23 Lord Howard de Walden v. Inland Revenue Commissioners [1948] 2 All ER 825...................................................................185 Lowden v. Northwestern National Bank & Trust Co. [1936] 298 US 160 at 165 ...............................................................................43 Lower v. Sorrell [1963] 1 QB Omerod LJ ...............................................................94 Lyons v. Tucker (1881) 6 QBD 660 .........................................................................12 MacCharles v. Jones.(1939) 1 WLR 133 ................................................................156 Maclean v. Trembath [1956] 1 WLR 437...................................................................8 Macmillan v. Dent [1907] 1 Ch 107 .......................................................................140 Magor and St. Mellon’s Rural District Council v. Newport Corporation [1952] AC 189......................................................................50, 61, 94 Magor and St. Mellons Rural District Council v. Newport Corporation [1950] 2 All ER 1226 ..................................................................50, 94 Marbury v. Madison 1 Cranch 137, 2 Ed. 60 ....................................56, 129-130, 142 Mearing v. Hellings (1845) 14 M. & W. 711 ...........................................................65 Merttens v. Hill [1901] 1 Ch 842 ..............................................................................18 Middlesex Justices v. R (1884) 9 App. Cas. 757 ......................................................20 Millar v. Taylor (1769) 4 Burr. 2303, 2332 ..............................................................89 Miller v. Salomans (1852) 7 Exch. 475 ..................................................................180 Minerva Mills Ltd. v. Union of India AIR (1980) SC 1789 ...................................162

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Minet v. Leman (1855) 20 Beav 269 ......................................................................139 Minister of Health v. ex p. Yaffe [1931] AC 494 ...................................................156 Minister of Home Affairs & another v. Collins MacDonald Fisher & Another [1980] AC 319 ...............................................................134, 136 Minister of Home Affairs & others v. Dabengwa 1982 (4) SA 301 .......................136 Minister of Home Affairs v. Bickle & others 1984 (2) SA 439 (ZSC)...................137 Mitchell v. Simpson (1890) 25 QBD 183 .........................................................75, 120 Nairn v. University of St. Andrews [1909] AC 147 ...............................................176 Nakkuda Ali v. Jayaratne [1951] AC 66...................................................................64 Nasralla Case [1967] 2 AC 238 ..............................................................................138 National Association of Local Government Officers v. Bolton Corporation [1943] AC 166................................................................................186 National Society v. Scottish National Society [1915] AC 207 .................................27 New Windsor Corporation v. Taylor [1899] AC 41 .......................................139, 181 Nokes v. Doncaster Amalgamated Collieries [1940] AC 1014 ......................119, 139 Northern Securities Co. v. United States, 193 US 197 (1904).................................63 Oriental Bank v. Wright (1880) 5 App. Cas. 842 ...................................................123 Partridge v. Strange (1552/3) 1 Plowd. 83................................................................26 Pearlman v. Keepers and Governors of Harrow School [1979] QB 56 ..................148 Pemsel Case [1891] AC 531 .....................................................................................72 Pepper v. Hart [1993] 1 All ER 42 ....................................................14, 89-90, 96-97, 116, 121 Phillips v. Eyre (1870) LR 6 QB.............................................................166, 168, 180 Pickstone v. Freemans plc [1988] 2 All ER 803.......................................................94 Plessy v. Ferguson 163 US 537, 16 S Ct 1138, 42 L Ed 873......................................9 Point of Ayr Collieries v. Lloyd George [1943] 2 All ER 546 ...............................159 Prager v. Blatspiel, Stamp & Heacock Ltd. [1924] 1 KB 566 ....................................2 Pyx Granite Co. Ltd. v. Minister of Housing [1970] AC 260.................................160 Quazi v. Quazi [1980] AC 744 ...............................................................................106 R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL) ............................................92 R v. Barrington 1969 (4) SA 179 (RAD)................................................................183 R v. Bertrand (1867) LR 1 PC ................................................................................122 R v. Brown [1890] 24 QBD 357 .............................................................................127 R v. Buttle (1870) LR 1 CCR 248 ....................................................................76, 185 R v. Coldham ex p. Australian Union (1983) 49 ALR 259 ....................................149 R v. Comptroller General of Patents ex p. Bayer Products Ltd [1941] 2 KB 306.............................................................................158 R v. Cornwall County Council, ex p. Huntington [1922] 3 All ER 566 ....................................................................................154-155 R v. Eldershaw 3 C & P 396 ...................................................................................127 R v. Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 KB 171............................................144 R v. Greater London Council ex p. Blackburn [1967] 1 WLR 550 ........................145 R v. Halliday [1917] AC 260 ............................................................................64, 122 R v. Hare [1934]1 K. B. 354 .....................................................................................21 R v. Inland Revenue Commissioners ex p. Rossminter [1980] AC 952.................158 R v. Kopsch (1925) 19 Cr App R 50.......................................................................127 R v. Local Commission for Administration [1979] QB 287...................................103

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R v. Loxdale (1758) 1 Burr. 445 .......................................................................75, 184 R v. Males (1962) 2 QB 500 .....................................................................................94 R v. Marsland 7 Cr App 77 .....................................................................................127 R v. Meade [1909] 1 KB 895 ..................................................................................127 R v. Medical Appeal Tribunal ex p. Gilmore [1957] 1 QB 574 .....................148, 150 R v. Miall [1992] 3 All ER 153...............................................................................152 R v. Morely (1760) 2 Burr. 1040 .....................................................................146-147 R v. Morris [1867] LR 1 CCR 90 ...........................................................................138 R v. Owen 4 C & P 236...........................................................................................127 R v. Pearce (1880) 5 QBD 306 ................................................................................23 R v. Plowright (1686) 3 Mod. 94.....................................................................145-146 R v. Price (1871) L.R. 6 QB 411 ...... ...............................................................76, 185 R v. Prince (1875) LR CCR 154 .............................................................................126 R v. Registrar of Companies, ex p. Central Bank of India [1986] 1 QB 1114...................................................................................155 R v. Secretary of State for the Environment, ex p. Ostler [1977] QB 122 ...................................................................................154-155 R v. Smith (1670) 1 Mod. 44 ..................................................................................145 R v. Tatam (1921) 15 Cr App R 122.......................................................................127 R v. Tolson (1889) 23 QBD 164.....................................................................126, 128 R v. Vasey & Lally [1905] 2 KB 748 ...............................................................72, 121 R v. Vine (1875) LR 10 QB 195..............................................................167, 169-171 R v. Waite [1892] 2 QB 600 ...................................................................................127 R v. Warwickshire County Council, ex p. Johnson [1993] 2 WLR........................116 R v. Williams [1893] 1 QB 320 ..............................................................................127 R v. Wimbledon Justices ex p. Derwent [1953] 1 QB 380 .......................................61 R v. Wood (1855) 5 E & B 49; 119 ER 400 ...........................................................149 R v. Haughton (Inhabitants) (1853) 6 Cox c.c. 101; 1 E & B, 501...........................18 R v. Liverpool Justices, ex p Crown Prosecution Service (1990) 90 Cr. App. R. 261 ........................................................................31 R v. Southwark Crown Court, ex p. Commissioners of Customs and Excise (1989) 3 WLR 1054 .............................................................32 R v. Tower Hamlets London Borough Council ex p. Chetnik Developments (1988) 2 WLR 654 ...........................................................34 Rahimtoola v. Nizam of Hyderabad [1958] AC 359 ................................................79 Re A Solicitor’s Clerk [1957] 1 WLR 1219 ....................................................168-169 Re Baines (1840) 12 A & E 227 ...............................................................................24 Re Bidie [1948] 2 All ER 995.............................................................................73, 85 Re Castioni [1891] 1 QB 149....................................................................................12 Re Clarke 17 WIR 49 (1971) Barbados ..................................................................132 Re Ludmore (1884) 13 QBD 415............................................................................139 Re Pulborough Parish School Board Election [1894] 1 QB 725 ....................170, 172 Re Sarran (1891) 32 WIR (PC) 375........................................................................163 Re Williams (1887) 36 Ch D 573 ...........................................................................139 Re Woking Urban District Council (Bassingstoke Canal) Act, 1911 [1914] 1 Ch 300 ....................................................................................20 Rein v. Lane (1867) LR 2 QB 144 ...........................................................................60 Richards v. McBride (1881) 8 QBD 119 ..................................................................88 River Wear Commissioners v. Anderson (1877) 2 AC 743......................................87

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xiii

Robinson v. Barton Eccles Local Board (1833) 8 App. Cas. 798.............................22 Ross-Clunis v. Papadopoullos & Others [1958] 2 All ER 23 .................................159 Rowe v. Law [1978] IR 55......................................................................................100 Rylands v. Fletcher (1868) LR 3 HL 330 .................................................................45 S v. Marwane 1981 (3) SA 588...............................................................................133 Sachs v. Minister of Justice 1934 SA (AD) 11 .......................................................165 Sagnata Investments Ltd. v. Norwich Corporation [1971] 2 All ER 1441 .............100 Salmon v. Duncombe (1886) 11 AC 627..........................................................72, 121 Salomon v. Customs and Excise Commissioners [1967] 2 QB 116 .......................173 Saunders v. White [1902] 1 KB 472 .........................................................................25 Scruttons v. Midland Silicones Ltd [1962] AC 466..................................................55 SE Railway v. Railway Commissioners (1880) 2 QBD 217 ....................................89 Seaford Court Estates Ltd. v. Asher [1949] 2 KB 481 ........................................49-51 Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen and Others (No. 2) [1970] 2 QB 55 ..............................159 Secretary of State for Trade and Industry v. Langridge (1991) 2 WLR 1343 .............................................................................31 Seluka v. Suskin & Salkow 1912 TPD 258 ..............................................................49 Sharpe v. Goodhew [1990] 96 ALR 251 ................................................................155 Sillery v. R (1981) 35 ALR 227..............................................................................100 Smith’s Case (In re London Marine Insurance Association) (1869) LR 4 Ch. App. 611 ...............................................................60 Smith v. East Elloe Rural District Council [1956] AC 736.............................153-155 Smith v. Hughes [1960] 1 WLR 830 ........................................................................94 Smt. Indira Gandhi v. Raj Narain AIR (1975) SC 2299..................................162-163 Soil Fertility Ltd. v. Breed [1968] 3 All ER 193 ......................................................41 South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union & Others [1981] AC 363...............148 Spillers Ltd. v. Cardiff Assessment Committee [1931] 2 KB 21............................176 State e rel Gouge v. Burrow, City Recorder Supreme Court of Tennessee, 1907 119 Ten. 376, 104 SW 526 ........................................................57 Stevens v. Chown [1921] 1 Ch 894 ........................................................................180 Stowell v. Lord Zouch (1569) 1 Plowden 353; 75 ER 536.......................................84 Stradling v. Morgan (1560), 1 Plowden 201 ............................................................83 Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034..........................81, 85-86, 89 Taylor v. National Assistance Board [1957] AC 101 .............................................146 Thomas v. Kelly (1880) 13 App. Cas. 506 ...............................................................25 Thornloe & Clarkson Ltd. v. Board of Trade [1950] 2 All ER 245........................158 Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385; [1908] AC 207.....................186 Tolson Case (1889) 23 QBD 164............................................................................126 Tomalin v. J Pearson & Son Ltd [1909] 2 KB 61...................................................176 Tomas v. A-G (1989) 41 WIR 299 .........................................................................163 Towne v. Eisner [1918] 245 US 418 at 425..............................................................39 Trendtex Trading Corporation v. Central Bank of Nigeria [1972] QB 529 (CA) ...............................................................................173 Tuck & Sons v. Priester (1877) 19 QBD 629 .........................................................124 Tuck v. National Freight Corporation [1979] 1 WLR 37 .......................................102 United States v. Bass 404 US 336 (1971) 339 ..........................................................99

xiv

Table of Cases

United States v. Klinger 199 F. 2d 645.....................................................................50 United States v. Raynor 302 US 540, 58 C 353, 82L Ed. 413................................101 Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107...............20 Venour v. Sellon (1876) 2 Ch D 522 20 Wacal Developments Pty Ltd. v. Realty Development Pty Ltd. (1978) 14 CLR 503 .....................................................................................104 Warburton v. Loveland (1832) 2 Dow & C1 480 ...............................................60, 89 Warley Caravans v. Wakelin [1968] 66 LGR, 534 ...................................................38 West Ham Union v. Edmonton Union [1908] AC 1.................................................63 West v. Gwynne [1911] 2 Ch 1 .......................................................................167-168 Westminster Bank Ltd. v. Zang [1965] AC 182 .......................................................88 Whiteman v. Sadler [1910] AC 514........................................................................183 Wing v. Epsom Urban District Council [1904] 1 KB 798........................................25 Woodward v. Sarsons (1875) LR 10 CP 733 .........................................................184 Wray v. Ellis (1859) 1 E & E 276.............................................................................75 Yorkshire Dale Steamship Company v. Minister of Transport [1942] 1 KB 35......................................................................................12 Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s Shoes (Pvt) Ltd. 1984 (2) SA 778 (ZSC) ............................................................136

TABLE OF STATUTES Act of Settlement 1700....................................................................................141 Administration of Estates Act 1925..................................................................46 Administration of Justice (Miscellaneous Provisions) Act 1938...................144 Australia Act 1916 ..........................................................................................155 Aviation Security Act 1982...............................................................................44 Bankruptcy Act 1883 ..............................................................................170, 172 Carriage by Air Act 1961................................................................................106 Charitable Uses Act 1601 ...........................................................................71, 72 Charities Act 1960.......................................................................................71, 72 Company Directors Disqualification Act 1986 ................................................31 Constitution Act 1961 .......................................................................................77 Constitution Act of Bophuthatswana 1977.....................................................133 Constitution Acts of Canada 1867-1982...........................................................18 Constitution Act of Nigeria 1979......................................................................17 Constitution (Thirty-Ninth Amendment) Act 1975 .......................................162 Consumer Protection Act 1987.......................................................................117 Copyright Act 1842.........................................................................................140 Copyright Act 1868.........................................................................................124 Corporation Taxes Act 1970 .............................................................................35 Corrupt Practices and Elections Act 1852 ........................................................76 Corrupt Practices and Elections Act 1863 ........................................................76 Criminal Justice Act 1988...............................................................................152 Criminal Law (Special Provisions) Act 1962...................................................57 Crown Proceedings Act 1947 .........................................................................175 Defence (General) Regulations 1939................................................................63 Drug Trafficking Offences Act 1986 ................................................................33 Ecclesiastical Lease Act 1571.........................................................................145 European Communities Act 1972...................................................................157 Factories Act 1961 ..........................................................................................157 Family Law Act of Barbados 1987.....................................................................3 Finance Act 1894 ..............................................................................................12

xvi

Table of Statutes

Finance Act 1926 ..............................................................................................35 Finance Act 1976 ....................................................................108, 109, 110, 111 Foreign Compensation Act 1950 ............................................................145, 151 General Rules Act 1967 ....................................................................................34 Housing Act 1974..............................................................................................80 Independence Act of Barbados 1966...............................................................??? Industrial Court Act 1976 .......................................................................163, 164 Industrial Relations Act 1976 .........................................................................149 Interception of Communications Act 1985 ....................................................164 Internal Security Act 1982 ................................................................................71 Internal Security and Intimidation Amendment Act 1991 .................................1 Interpretation Act 1850 ...................................................................24, 67, 68, 69 Interpretation Act 1889 .......................................................................24, 69, 129 Interpretation Act 1978 .............................................................................69, 129 Interpretation Act of Canada 1967-1968 ..................................................19, 185 Interpretation Act of Ghana 1960.....................................................94, 101, 102 Land Charges Act 1925.....................................................................................46 Land Registration Act 1925 ..............................................................................46 Land Transfer Act 1897 ....................................................................................15 Law of Property Act 1892...............................................................................167 Law of Property Act 1925...........................................................................46, 79 Law of Property (Miscellaneous Provisions) Act 1989 .....................................9 Leasehold Reform Act 1967............................................................................80Licensing Act 1964 ...........................................................................................27 Local Government Revenue Act 1988..............................................................95 Magistrates’ Courts Act 1980 ...........................................................................31 Mortmain and Charitable Uses Act 1891 .........................................................71 National Insurance Act 1911 ..........................................................................157 National Insurance (Industrial Injuries) Act 1946..........................................148 Newspaper Surety Ordinance (Amendment) Act 1971....................................35

Table of Statutes

xvii

Official Secrets Act 1911 ..................................................................................21 Public Health Act 1848 ...................................................................................150 Public Order Act 1970 ....................................................................................132 Regulation of Customs Act 1825......................................................................67 Republic of South Africa (Second Amendment) Act 1981 .............................77 Settled Land Act 1925.......................................................................................46 Sex Discrimination Act 1975..........................................................................157 Sheriffs Act 1887.............................................................................................120 Social Security and Housing Benefits Act 1982 ..............................................31 South Africa Act 1909 ................................................................................58, 59 State Immunity Act 1978 ..................................................................................80 Street Offences Act 1959 ..................................................................................94 Terrorism Act of South Africa 1967.............................................69, 70, 71, 133 Tribunal and Inquiries Act 1958 .....................................................................164 Tribunal and Inquiries Act 1971 .....................................................................164 Trustees Act 1925..............................................................................................46 Vexatious Actions Act 1896............................................................................146 Video Recordings Act 1984 ..............................................................................44 West India Docks Act 1831 ..............................................................................61 Yorkshire Registries Act 1884 ..........................................................................79

Chapter 1 Introduction

What is a statute? A statute is a formal act of the Legislature in written form. It declares the will of the Legislature. It may be declaratory of the law, or a command which must be obeyed, or a prohibition forbidding a course of conduct or a particular act. We normally refer to the whole body of law as enacted by Parliament as the Statute Book. For a single enactment, the term Act of Parliament is usually used. In a federal state, the enactment of the legislature of each of the States or Provinces is also a statute. The term Act of Parliament is thus reserved for the law as enacted by the supreme legislature. An Act of the Congress of the United States of America is an Act of Parliament – the difference is that in the United States of America Parliament is referred to as the Congress. From about 1689, when the Bill of Rights was passed, Statute Law has become the most important source of law. At Appendix A is a classification of Statutes. The term Statute Law is used to distinguish the law passed by Parliament from Common Law or Equity. Common Law is almost, but not quite, ‘judgemade’ law. It derives its authority from the usages and customs of time immemorial, affirmed and enforced in the judgments and decrees of the courts of law. William the Conqueror sent out his justices in eyre to collect and collate the customs of England. Some of the customs were made universal as being common to the whole of the country. The Conqueror also accepted the Doons of the Saxon Kings. This process of adaptation and modification has continued to this day. Common Law thus developed through case law. It comprises the body of those rules and principles which inform government, security of the person and property, and is therefore part of the positive law. It is as effective as an Act of Parliament – until it is ousted by statute. Like yeast, Common Law rises from below, rather than being imposed from above like an Act of Parliament. The rules of law known as the doctrines of Equity grew out of the harshness of the Common Law. Equity started with petitions to the Sovereign to redress the grievances perpetrated and perpetuated by the rigid application of the Common Law. It thus began life as the attempt to administer justice with fairness – from the quasi-religious status of the Lord Chancellor as the keeper of the King’s conscience. The term Equity is often equated with the spirit and enforcement of fairness and right dealing which should animate the behaviour of individuals.

2

Understanding Statutes

The object of the Common Law, said McCardie J in Prager v. Blatspiel, Stamp & Heacock Ltd.,1 is to solve difficulties and adjust relations in social and commercial life. It must meet, so far as it can, sets of facts abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that, it fails in its function and declines in its dignity and value. An expanding society demands an expanding Common Law.

This statement applies equally well to Equity. It was the harshness of the Common Law, its failure to achieve fairness instead of rigidity that led to the rise of Equity. In the end, if both Common Law and Equity fail to deal with the ‘changing and novel circumstances’, legislation – that is, statute law – will hold the day.

The Genesis – The Formulation of Policy A statute is the crystallisation of an objective. That objective may be political, social, economic or even personal, but there will be a motive that lurks behind it. A group of persons may be interested in a particular measure which may call for the exercise of the legislative power of the state. Legislation then becomes the means to attain an end. These groups could be: • political parties • pressure groups • departmental officials • Commissions of Inquiry • Parliamentary committees • public and private organisations Although some groups have a greater or more direct influence on the legislature than others, they are all united in the same conviction that a situation exists which calls for legislation. This leads to the investigation of the social devices which would suggest the remedies for the problems that call for legislation. In this investigation, recourse may be had to legislative committees, lobbyists, a person or persons directly or indirectly interested. At each stage of the investigation there will be studies commissioned, conferences and consultations constituted and conflicts of competing concepts contained. There may be public debate generated by a Government White Paper.2 __________________________________________________________________________________________________________________________________________

1

[1924] 1 KB 566 at p.570.

2

A White Paper is a report issued by the Government to give information. There are also Green Papers, which are tentative reports of Government Proposals without commitment.

Introduction

3

When ideas have crystallised, a decision will be taken that there is need for legislation. A summary of the various proposals will be submitted to, say, the Minister under whose portfolio the subject-matter of the proposals falls. When what is involved is a major piece of legislation, in some cases the public may not be aware of all these happenings until a hint is given in the ‘Speech from the Throne’. The proposals will be submitted to the Cabinet in the form of a Cabinet Memorandum. After Cabinet approval has been obtained, instructions are sent to Parliamentary Counsel to draft the required Bill. After the draft is completed, it is sent to the sponsoring Ministry for comments. Others, in special circumstances, may also be asked for their comments and there may be a few revised drafts. Finally, the Bill as settled between Parliamentary Counsel and the sponsoring Ministry is sent to the Cabinet Committee on Legislation, and then to the Cabinet as a whole to be approved for introduction in Parliament.3 Background knowledge Law does not operate in a vacuum, and this is especially true of statute law. A statute is intended to guide, and regulate, the conduct and affairs of those to whom it is addressed. Its content thus takes cognisance of the cultural, economic, political and social conditions of the society within which it is intended to operate. A sound knowledge of these conditions is very necessary to a complete understanding of the statute. Any of those conditions, or a combination of any of them, could constitute the facts upon which a Bill is drafted. In the drafting of a piece of legislation on marriage, for example, the question would obviously be asked whether age is all that matters. Are there other incidents that go to make a valid marriage, such as the form of the celebration of the marriage, and the issue of dowry? If the dowry is seen as an essential part of the marriage, then the mere fact that one has attained the age of majority does not mean that one can contract a valid marriage. Since marriage is an issue of social fact rather than of law, legislation would thus seek to regulate behaviour in the ‘real world’.4 In doing so, it must of necessity look at society and at the institutions which society has established for its guidance. Legislation would not seek to uproot society. If it did, the law would be a dead duck. Spouses take lovers in monogamous societies. Legislation against that system ‘would obliterate public life’.5 It is very difficult to prosecute for __________________________________________________________________________________________________________________________________________

3

The process does not exclude what is normally referred to as the Private Member’s Bill.

4

The Family Law Act 1987 of Barbados, for example.

5

The Guardian Weekly, Vol 146 No. 4 week ending 26 January 1992.

4

Understanding Statutes

bigamy in a predominantly polygynous society. Each piece of legislation has a background and a policy. A sufficient knowledge of that background and of that policy is essential to the understanding of an Act of Parliament. Drafting instructions An Act of Parliament subsumes government policy effectively into legislative language. The policy considerations for the drafting of a Bill are put down in the form of Drafting Instructions. These Instructions normally state precisely what the problem is, at least to the administrator. What has given rise to the problem? What attempts have been made to solve the problem without the assistance of legislation? How and why have the attempts failed? What are the solutions devised administratively to solve the problem that calls for legislation? Unless ideas have crystallised it is a sheer waste of time to embark upon the drafting of a piece of legislation. However, those who instruct Parliamentary Counsel should not attempt to be lawyers. Least of all should they attempt to be Parliamentary Counsel and send draft Bills to Counsel. They help in the process by remaining as laymen, leaving it to the drafting experts to appreciate the decisions based on the policy and their implications. Legislative drafting does not consist in copying precedents nor in polishing what others have drafted. Furthermore, from Westminster6 comes the stern warning that, Nothing is more hampering to Parliamentary Counsel, when the drafting stage is reached, than to be obliged to build what is usually a complex structure round “sacred phrases” or forms of words which have become sacrosanct by reason of their having been agreed upon in Cabinet or in one of its committees. A still more serious objection to agreed form of words of this kind is that they often turn out to represent agreement upon words only, concealing the fact that no real compromise or decision has been reached between conflicting views upon some important question.

Parliamentary Counsel fill in the details of the broad policy statements. They raise questions – legal questions which may lead to a reconsideration of the policy. However, they do not presume to rearrange or alter the will of the legislature, just as an architect does not dictate to a client what the architect thinks the client needs. The architect would advise the client that with the financial resources available and having regard to the area of the land for the building, the contours of the land, the orbit of the sun and the wind direction during the day and during the night, a north-facing building would suit the purposes of the client. And bearing these matters in mind the architect would advise the client how the bedrooms would be situated in relation to the study, __________________________________________________________________________________________________________________________________________

6

The Preparation of Bills (1948) p.8.

Introduction

5

the lounge, the dining room, the kitchen and all the other facilities that go with them. Those who draft Bills for Parliament bear a similar responsibility.

The Process – The Drafting of Legislation Research An Act of Parliament is usually an attempt to find a solution to the problems faced by governments, and by society as a whole. An understanding of the problems is essential in the search for the solutions, and that depends upon adequate knowledge of the conditions that have given rise to the problems. Those who read an Act of Parliament must thus have some basic knowledge of the subject-matter upon which the Act is based and must be prepared to supplement their basic knowledge with research. A sound knowledge of the existing law is vital since an Act of Parliament is drafted to become part of the body of the law as a whole. Added to that will be a sound knowledge, and understanding, of the issues that have created the problem. That is what is referred to in Heydon’s Case7 as the ‘purpose approach’ or the ‘mischief rule’. Parliamentary Counsel who draft a Bill must know what they are looking for. Their industry and discipline helps them to ask the right questions and thus save themselves valuable time, as well as the time of all others who may have to read an Act of Parliament. The Legislative Scheme After Parliamentary Counsel has mastered the subject matter of the proposed legislation and read the Drafting Instructions, the next important step in the drafting process is the preparation of the Legislative Scheme. Upon that scheme hangs the quality of the Bill and ultimately of the Act of Parliament. The Legislative Scheme represents Counsel’s mental picture of how well the Act of Parliament would look in structure and quality, in substance and in form. Here Parliamentary Counsel deals with the logical sequence of the various matters that bear upon the Bill and organises the symmetrical arrangement of the sections. Here the symmetrical arrangement of sections is organised. Form and substance take their proper places. The law and its administration are equally balanced. Without the Legislative Scheme the resultant Act will look like a patchy, sketchy work, ill-conceived and ill-prepared. This is the area where the policy of the law is put in an outline for the achievement of the objectives of the proposed legislation. It is in the Legislative Scheme that Parliamentary Counsel perceives whether the Act will be a workable piece of legislation, __________________________________________________________________________________________________________________________________________

7

(1584) 3 Co. Rep. 7a; 76 ER 637.

6

Understanding Statutes

whether the task of the courts will be made easier in the construction of the Act as a whole. The Legislative Scheme is in effect the architectural plan of the building that is called an Act of Parliament. Criticism Those who criticise Parliamentary Counsel regarding the language of an Act of Parliament often do not realise the constant criticism to which Counsel themselves subject their drafts of a Bill. ‘Animals are such agreeable friends – they ask no questions, they pass no criticism.’ said George Eliot. 8 Parliamentary Counsel heed that warning. They do not shun or avoid criticism. It is to their advantage that there are people who would question how well a Bill has been drafted. Legislation is enacted for a variety of people, for a variety of reasons. It is a serious business. The happiness of a people depend on it, the progress of a people may be hindered by it. Those who are responsible for drafting legislation bear this in mind. Criticism, whether in good faith or in bad faith, is an asset to Parliamentary Counsel and is accepted as having been made in good faith, whatever the source. It is considered as an attempt to improve the quality of the Bill. Lord Thring warned Parliamentary Counsel that for them virtue will, for the most part, be its own reward, and that after all the pains that have been bestowed on the preparation of a Bill, every Lycurgus and Solon sitting on the back benches will denounce it as a crude and undigested measure, a monument of ignorance and stupidity. Moreover, when the Bill has become law, it will have to run the gauntlet of the judicial bench, whose ermined dignitaries delight in pointing out the shortcomings of the legislature in approving such an imperfect performance.9

There are two aspects to be dealt with here: the quality of the drafting and the soundness of the proposed law. To this may be added a third aspect: how well will the resultant Act work in practice. Criticism helps Parliamentary Counsel to recognise where there is an ambiguity, where the wording has deviated from the substance, where clarity has been sacrificed to simplicity, where verbosity has detracted from the beauty of expression.

The Language – Legal Language The importance of language in any given situation cannot be over-emphasised. It is the chief medium of communication and thought. Because lawyers __________________________________________________________________________________________________________________________________________

8

George Eliot, Scenes of Clerical Life, Ch.7.

9

Practical Legislation, p.8.

Introduction

7

operate in the field of social control, language is of even greater significance to them. Words are, in a very special way, the tools of the lawyers’ trade. Words are to lawyers ‘what the scalpel and insulin are to the doctor, or a theodolite and slide rule to the civil engineer’.10 Words occupy the lawyer’s attention in the construction, drafting and the interpretation of contracts, statutes, wills, and other legal documents. They are the effective force in the legal world. In statutes they result in heavy fines, long imprisonments and even death. In contracts, deeds or wills, they transfer large amounts of property. Hence the persistent feeling in our profession that the right words must be used.11

Parliamentary Counsel communicate policy decisions having legal consequences to members of society in the form of legislation. Legislation in these circumstances has, as its sole medium of communication, the written word. In ordinary speech we see and hear the person we are talking to. Gestures, intonation, the inflection of the voice, all aid in an understanding of what is said. In the face of Othello’s horrible fancy, Desdemona queried: Upon my knees, what doth your speech import? I understand a fury in your words But not the words.12

In cold print language is a different matter. The words stand on their own. There is an air of permanence, of finality about them. Compared with speech, that permanence, that finality give language another dimension. An error or ambiguity in ordinary speech can be corrected and immediately resolved by the Socratic method. In a statute, an amending legislation or a decision of the courts is the cure. Said Driedger: Statutes are laws. They are supposed to settle the rights and liabilities of the people, and they are enforced by the courts. They must be, so far as we can make them, precise. They are serious documents. They are not, like the morning newspaper, to be read today and forgotten tomorrow. Like all other serious works of literature, they must be read and studied with care and concentration. Every word in a statute is intended to have a definite purpose and no unnecessary words are intentionally used. All the provisions in it are intended to constitute a unified whole.13

__________________________________________________________________________________________________________________________________________

10 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 381 at p.382. 11

Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR 384.

12 Othello, Act 4 Scene 2. 13 The Composition of Legislation, p.xxiii.

8

Understanding Statutes

It is, however, the very nature of language that presents the greatest problem to successful communication. Language is considered as ‘perhaps the greatest human invention’,14 yet it is a most imperfect instrument for the expression of human thought. It has tremendous potential for vagueness, ambiguity, nonsense, imprecision, inaccuracy and indeed all the other horrors recognised by Parliamentary Counsel.15 As John Austin stated, it is far easier to conceive justly what would be useful law, than so to construct that same law that it may accomplish the design of the law giver.16

In the famous words of Mr Justice Oliver Wendell Holmes, ‘Ideas are not often hard, but words are the devil’. 17 The imperfections of language notwithstanding, it still must be used in any society, if only because it is the chief medium of expression. It should now be obvious that a good command of language is vital, not only for those who draft legislation, but also for those who try to understand it. Firstly, the reader of an Act must understand the nature of language and its various functions. Secondly, the reader must grasp the theory of words as symbols for the communication of meaning and their myriad imperfections. Lastly, the reader must understand that time, circumstances, and social forces influence the meaning and the usage of words. Thus legislation must be understood and interpreted to keep pace with social needs arising from the progress of time. That is why in Corkery v. Carpenter,18 the conviction of a defendant was upheld on the ground that a bicycle fell within the words ‘drunk while in charge on any highway … of any carriage’. In Maclean v. Trembath,19 a Judge thought that the word horse should include an aeroplane: ‘it is much the same thing’. And in Armstrong v. Clark,20 Lord Goddard LCJ would not even consider whether a non-alcoholic beverage is drink within the meaning of the [Road Traffic Act, 1930]. If that were so, I should be inclined to apply the dictum of Martin B., where the bailiff was sworn to keep the jury without meat or drink, or any light but candlelight, and a juryman asked if he might have a glass of water. Martin B. said: “Well, it is certainly not meat and I should not call it drink. He can have it.” I think “drink” means alcoholic drink.

__________________________________________________________________________________________________________________________________________

14 Glanvill Williams, ‘Language and the Law’, 61 LQR p.71. 15 G.C. Thornton, Legislative Drafting, p.2. 16

Jurisprudence, quoted by Ilbert, The Mechanics of Law Making, p.98.

17 Quoted by R.E. Megarry, A Second Miscellany-at-Law, p.152. 18

[1951] 1 KB 102 at p.103.

19

[1956] 1 WLR 437.

20

[1957] 2 QB 391 at p.394.

Introduction

9

Plessy v. Ferguson 21 and Brown v. Board of Education 22 have also demonstrated how time, circumstances and the need to keep pace with advancement in social conditions influenced the construction and interpretation of the same words in the Constitution of the United States. Modern linguists consider language as ‘a system of vocal symbols with arbitrary conventionalised references accepted by a group of humans and understood within it, and having the social function of carrying information from speaker to hearer’.23 This definition places emphasis on the structural and functional aspects of language. It constitutes a system of symbols, the function of which is to carry information from person to person within a given speech community. It indicates that the described function of the system is performed by virtue of individual symbols having definite referential values, such as to individual items, units and elements in the culture of a given society. Language as such goes beyond that. It is, essentially, a social institution. It was John Locke who said that, God having designed man for a reasonable creature, made him not only with an inclination and under a necessity to have fellowship with those of his own kind but furnished him also with language, which has to be the great instrument and tie of society.24

If the verbal images stored away in the minds of the individual members of society are not substantially the same, there would be no effective communication. And as St. Paul25 said, if the trumpet give an uncertain sound, who shall prepare himself to the battle? So likewise ye, except ye utter by the tongue words easy to be understood, how shall it be known what is spoken? For ye shall speak into the air.

The symbols, then, are arbitrary: there would be no recognisable direct link between the sound structure of a given symbol and its referential value. Yet they are conventional in the sense that they are accepted by members of the speech community.26 The written word may be contrasted with speech, which is the actual use of vocal symbols by an individual to convey information. Speech, though, is __________________________________________________________________________________________________________________________________________

21 163 US 537, 16 S.Ct 1138, 42 L.Ed 256 (1896). 22

347 US 483, 74 S.Ct 689, 98 L.Ed 873 (1954).

23 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.11. 24 The Second Treatise of Government, Chapter VII. 25 1 Corinthians, 14: 8-9. 26 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western Australia, p.2.

10

Understanding Statutes

the act of the moment, the instantaneous response to stimuli acting upon the individual. The written word is a system that changes, but changes slowly.27 The relationship between language and thought is of particular interest in semantics. There are those who argue that all thinking above a very primitive level is in words, and those who hold the view that language is merely a medium for the expression of thought and no more.28 Examples of thought without words that are normally given are of the chess player pondering the next move, or of the architect. Exactly how far there can be thought without words is controversial. Nonetheless, it can be confidently asserted that language and thought are inextricably bound together. Most, though not all, thought involves the use of verbal images or symbols.29 Again this relationship between thought and language is of significance to an understanding of legislation. Words are much more than the tools of the lawyers’ trade. Words are the raw materials with which we all work. They are bound up with our thought processes and quite lacking in the passivity, stability and fixity of purpose recognised in a chisel or a hammer. Francis Bacon has said that, Men imagine that their minds have command over language but it often happens that language bears rule over their minds.30

A consequence of this close relationship between language and thought is that the language of a given community to a large extent reflects and depends upon its cultural environment. It is said31 that the individual’s cultural environment exercises a moulding influence on, and fixes the limits of, that individual’s thoughts and language habits. This means that language as a system of symbols can only exist if there is a culture complex with which it is connected through conventionallyestablished and generally-accepted referential ties of the people who share that language. In other words, a language-like system of vocal symbols in which the individual symbols lack references to elements, items and concepts of a culture is meaningless. The sentence, ‘I will see you after lunch’, is only meaningful in a culture in which lunch is an established institution. This language-culture nexus is of great practical importance to an understanding of the language of legislation. An Act of Parliament is part of the language of the society for which the law is enacted. It does not operate in a vacuum. It has a policy all its own, which may be cultural, economic or __________________________________________________________________________________________________________________________________________

27 G.C. Thornton, Legislative Drafting, p.3. 28 Glanville Williams, ‘Language and the Law’, 61 LQR p.71. 29

Glanville Williams, ibid, p.72.

30 Quoted by Simeon Potter at p.19, Language In The Modern World. 31 S.A.Wurm, ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western Australia, p.2.

Introduction

11

social, and an appreciation of the cultural, economic and social values is essential to a successful understanding of the statute. The law may contain, and indeed may rely, on concepts or mental images which are not known to the society concerned as a whole. However, where these concepts or mental images are not adequately translated into concepts and images readily understood by the society for which the law is enacted, the law becomes an imperfect instrument as a means of communication. Language has yet another function – an emotive function. It is argued that language is not used solely for the communication of thought, but frequently employed to evoke emotional responses. A good illustration is a Counsel’s address to a jury, which does much more than merely sum up the evidence. Counsel seeks to evoke emotion, action and reaction, i.e. a favourable verdict. In an Act of Parliament, even in the absence of the emotive use of language, it is the effect the Act has on society as a whole or a part of that society that raises an emotive response.32 It is the essence of language that it reflects, expresses and affects the patterns of established ideas and the values that help shape the culture within which the language grows. The language used in our courts provided the vital material upon which the doctrine of judicial precedent was based, and thus the body of our judge-made law. The Normans conquered Britain in 1066. In time Norman French became the language of the educated classes and thus of the law. Before that, Latin had held the day because of the Roman conquest. But Norman French became a mixture of English and French.33 The earliest statutes were written in Latin. By 1275 some of the statutes were in Norman French, others in Latin. By 1309 Norman French had taken over as the more usual language of statutes. Reaction set in. In 1362 a statute34 required pleadings to be in English rather than ‘in the French tongue, which is much unknown in the realm.’ The recording of statutes in Latin or Norman French ceased after the death of Richard III. By 148835 the Statute Roll had ceased to be made up in the ancient form and statutes have since continued to be published in English. Yet, to this day, the Lords Commissioners proclaim the Royal Assent in Norman French: la Reyne le veult.

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32 Consider the reaction of the people of the United Kingdom to Margaret Thatcher’s Poll Tax. 33

Megarry’s Miscellany-at-Law contains many examples of the mixture. A well known one is where a report mentions an incident in Court in which the defendant ‘jette un brickbat at le judge, que narrowly missed’.

34 36 Edward 111 c.15, which provided that ‘... all pleas ... shall be pleaded, shewed, defended, answered, debated, and judged in the English tongue, and that they be entered and inrolled in Latin ....’. 35 4 Hen. 7.

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Understanding Statutes

By the nineteenth century, it was said that ‘the language of statutes is peculiar … and not always that which a rigid grammarian would use’.36 The courts had started to be frightened by the language of Acts of Parliament. Another reaction had set in. Of the Finance Act, 1894,37 Lord Macnaghten remarked that, the only question remaining is a question of construction, a question perhaps of some difficulty, arising as it does on one of the least intelligible sections in an Act of Parliament not remarkable for perspicuity.38

In Yorkshire Dale Steamship Company v. Minister of Transport 39 MacKinnon LJ stated: This case raises the problem of the proper construction and effect of ten infamously obscure words – “warranted free… from the consequences of hostilities or warlike operations.” It is to me, personally, a melancholy reflection that during my last ten years at the Bar I was compelled, as advocate or arbitrator, to spend more time on the consideration of the effect of these ten words than on any other problem. They come back now to me a crambe repetitia, and the cabbage is of the stalest.

The criticism of the language of legislation has continued to this day. It is no longer confined to the courts. There are now calls that the language of statutes should be in Plain English. The Law Reform Commission of Victoria, Australia, 40 makes the point that Plain English concentrates on those grammatical structures and words which are readily understood. That is admirable. Yet the problem lies at the root of the English language itself – it is not an instrument of mathematical precision – and the intellect and intelligence of advocates will always dispute the meaning of a particular provision of an Act of Parliament. That is why Stephen J warned, in Re Castioni,41 that a degree of precision … is essential to [the drafting of] Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which, therefore, it is not enough to attain to a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand.

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36

Lyons v. Tucker (1881) 6 QBD 660 at p.664.

37 57 & 58 Vict. Ch.. 30. 38 Attorney-General v. Duke of Richmond and Gordon, [1909] AC 466. 39 [1942] 1 KB 35 at p.43. 40 ‘Legislation and Legal Rights and Plain English’, discussed in (1986) 12 CLB 1018 et seq. 41 [1891] 1 QB 149 at p.167.

Introduction

13

It is perhaps instructive at this stage to quote at length the observations of Lord Oliver of Aylmerton, a Lord of Appeal in Ordinary: The English language, as has been observed on more than one occasion, is frequently susceptible of ambiguity. Whenever anyone finds a provision difficult to understand with certainty, his first and instantaneous reaction is to blame the draftsman. It is, of course, very easy to make fun of the parliamentary draftsmen. I confess to having myself once described a particularly abstruse provision as “something of a minor masterpiece of opacity”, but I regret it because I think that such shafts are frequently not aimed at the right target. The draftsman doesn’t draft in a vacuum and straight out of his head. It is his job as well as his misfortune to seek to reduce to writing concepts and ideas fashioned and implanted by somebody else. The parliamentary draftsmen do an immensely important task and do it under almost intolerable pressure; but in the end they merely put into words what their political masters state as their desired object. If the object is itself bizarre or ambiguous, one can hardly be surprised that the result is bizarre or ambiguous. I like to remind myself, from time to time, of Lord Macnaghten’s remark that he did not think that the framers of the Irish Land Act were to blame for not assuming that a judge would go out of his way to derogate from the rights of a third person who had nothing whatever to do with the matter in hand. “The process vulgarly described as robbing Peter to pay Paul”, he said, “is not a principle of equity, nor is it, I think, lightly to be attributed to the Legislature even in an Irish Land Act.”42 If one finds, as one sometimes does, that an Act contains a provision that does not make sense, it is only too easy to assume that it is the draftsman who has made an error. What sometimes fails to strike the judicial mind is that the draftsman was in fact doing exactly what he was instructed to do and that his drafting does indeed truly reflect that elusive “parliamentary intention”. It is precisely this that makes me very suspicious of searching for some supposed rational parliamentary intention outside the language in which a draftsman who is known to be rational has chosen to express it. It is the statute that marks out the field and dictates to the citizen the rules by which he is to play and the goal at which he is to aim. Too often, I think, the referee is tempted to shift the goal-posts in reliance upon his own speculation about what it would have been sensible for Parliament to do if Parliament had thought of doing it. This, and also the danger which, as it seems to me, lurks in the encouragement of judicial excursions into the parliamentary preserve of legislative policy, may be illustrated by reference to two cases. One of the cases also incidentally raises the question of whether, and to what extent, it may be desirable to have regard to what was said in Parliament at the time when the legislation was under discussion.43 __________________________________________________________________________________________________________________________________________

42 Evelyn Viscountess De Vesci v. O’Connell [1908] AC 298 at p.310. 43 [1993] Stat LR, Vol. 14 No. 1, pp.4-5.

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Understanding Statutes

The Progress – The Stages in Parliament When a Bill is introduced in Parliament,44 it receives its first reading. This means that the Clerk announces the title of the Bill, and the Minister responsible for it rises in his place at the front Bench and bows. That is all. It is a reminder of the days when Bills were actually read out in Parliament as most members then could not read nor write. There is no debate on the Bill at this stage. The next stage is Second Reading. At this stage the principles of the Bill are fully debated, but no amendments are permitted. In the course of a member’s speech, however, an indication may be given of the intention to move an amendment at the appropriate stage. In recent years, the Second Reading of a Bill may be referred to a special Second Reading committee. The committee reports to the whole House, which then formally resolves that the Bill be read a second time. The Committee Stage follows the Second Reading and is the most important part of the procedure, as Pepper v. Hart45 has shown. At this stage the Bill is debated clause by clause. Explanations are sought from the Minister responsible for the Bill as to the meaning of some, at least, of the provisions. Clarification may be called for as to the effect of the law. The principles of the Bill cannot be debated. A motion is moved in respect of each clause to ‘stand part of the Bill’. There is usually an informal atmosphere. A member may speak more than once to the same question. Long set speeches are out of place and remarks are normally brief. Details of a Bill are being dealt with. They do not justify a lot of laboured arguments. Amendments put down usually come from the Minister promoting the Bill, departmental officials, even Parliamentary Counsel. Where amendments are accepted, Parliamentary Counsel drafts the required amendments. At the next stage – the Report Stage – the Bill as amended in Committee is reported to the House. Where the House is not satisfied the Bill may be sent back to the Committee. Occasionally, but not usually, amendments may be made at the Report Stage. Finally, the Bill is read a third time. At Third Reading debate is brief – general comments on the Bill as a whole may be dealt with. The Bill is then passed by Parliament and is submitted for the Assent. When the Assent is given, the Bill becomes an Act of Parliament.

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44 Where there are two Chambers the procedure is repeated. When the Upper and the Lower Chambers do not agree on amendments, usually a committee of both Chambers is constituted to resolve the differences. 45

[1993] All ER 42.

Introduction

15

Due to its importance, a little more needs to be said about the Committee stage. Normally, Bills are dealt with at this stage by a Committee of the Whole House. Increasingly, Standing Committees are chosen by the Committee of Selection. A Standing Committee reflects the strength of the political party structure in the House itself – it is a miniature Parliament. Amendments are put down for the Committee’s consideration, drafted by the Parliamentary Counsel who drafted the Bill before the Committee. The language used is that of Parliamentary Counsel. Each amendment is fully debated. At the end of each debate there is a motion that the clause as originally presented or as amended stand as part of the Bill. Amendments moved by the Opposition or the Government’s own backbenchers are sometimes accepted, but usually the amendments are withdrawn when the Minister in charge of a Bill gives an undertaking to reconsider the substance of the provision to meet a point raised on the particular clause. The Government will frequently refuse any amendments, however controversial the Bill may be.46 Mistakes are likely to occur at the Committee Stage of a Bill. A well known example concerns s.22(6)(h) of the Land Transfer Act, 1897. The Bill used the words ‘For inserting in the register …’. An amendment was moved in Committee for substituting for the word ‘For’ the words ‘For allowing the insertion’. The resulting provision thus read ‘For allowing the insertion, inserting in the register …’. Gerald Kaufman47 gives us a very graphic idea of how the committee system works in the House of Commons. He states that once a Member goes into the committee room, the member is encapsulated in a private world; life is governed by the hours the Committee sits and the party to which the member belongs. If the member is a government backbencher, the sole expectation is that the member sits silently, except when votes take place and the member is required to call out Aye or No, as instructed by the harassed but unrelenting whip. Apart from this, the supporters of the administration sit at their desks, studying their constituency correspondence, looking up from time to time in case something interesting might be happening. Ministers in charge of a Bill are well briefed by the departmental officials. The Ministers are issued with one set of folders marked Notes on Clauses, which explain to them what each clause of their Bill is supposed to mean. As Opposition members rise to move amendments, the Minister due to reply consults another folder, entitled Notes on Amendments. Some of these notes are headed Resist. This means that at the end of the debate the backbenchers will have to be on hand to call out ‘No’. Another __________________________________________________________________________________________________________________________________________

46 An example is the European Community’s Bill. See de Smith Constitutional and Administrative Law, 5th ed. p.291. 47 The Listener 29 March 1984.

16

Understanding Statutes

folder may have the heading Accept. The third heading is Consider. This requires the Minister to decide personally on the merits of the arguments. When Opposition members ask awkward questions, answers to which are contained neither in Notes on Clauses nor in Notes on Amendments, the departmental officials (some of whom sit on the chairman’s dais, others in a corner) pass notes to the Minister in order to make it easier for the Minister to make a suitable reply. In general, the amendments that are actually made in a Government Bill are those proposed by the Government and those which are agreed to by the Minister in charge of the Bill. The Government amendments are always drafted by the Parliamentary Counsel who was responsible for drafting the Bill. As regards amendments proposed by other members, the advice of Parliamentary Counsel is always taken and acted on. Where a proposed amendment is acceptable to the Minister as a matter of policy but is defective in form, then either the amendment will be made and sorted out at a later stage by further Government amendments, or it will be withdrawn on a promise by the Minister to promote a Government amendment at a later stage. The latter practice in turn leads to the accusation that Parliamentary Counsel, sheltering behind the Minister, exercise far too much control over the language and structure of legislation, thus making a mockery of the true democratic process.48 The Parts – Short Title etc A part of an Act of Parliament has effect upon the other parts of the Act, hence the rule that an Act of Parliament should be read as a whole in order to be understood. The main parts of an Act are: • Assent • Titles • Marginal Notes • Preamble • Headings • Interpretation Section • Enacting Sections • Schedules The Assent The Assent is the final act in the process of turning a Bill into an Act of Parliament. A Bill passed by Parliament in all its stages is, normally, still a __________________________________________________________________________________________________________________________________________

48 Professionalizing Legislative Drafting Ed. Reed Dickerson, p.118.

Introduction

17

Bill, not law. Only the Assent can give it the character of a law. It is thus a genuinely important part of an Act of Parliament. It is generally said that the courts in the United Kingdom do not question the validity of an Act of Parliament – certainly they cannot declare an Act of Parliament as being illegal or unconstitutional. This is based on the argument that there is no constitution as such by which to measure the legality of an Act of Parliament. (In jurisdictions with written constitutions, the constitution is the supreme law, so any law which is inconsistent with, or in contravention of, a provision of the constitution is void to the extent of the inconsistency or the contravention.) The Royal Assent also gives force to the theory of the sovereignty of Parliament. However, even in the United Kingdom the Royal Assent may be queried. It is a question of fact, not of law: the statute Quia Emptores (1289)49 provided that an Act of Parliament is a general law whereof the judges may take knowledge, and therefore it is to be determined by them whether it is a statute or not.

Thus, whether an Act of Parliament has been assented to can be challenged in a court of law in the United Kingdom. The Royal Assent gives force to the enacting formula (that the Act is enacted by the Sovereign, the Lords Spiritual and Temporal and the Commons). The Royal Assent is often given by the Royal Commission, to which are attached as a Schedule the Short Titles of the Bills to be assented to. In Commonwealth countries with written constitutions it is possible for a Bill to become an Act of Parliament without the Assent. Under the Constitution of Nigeria, 1979, s 54 provided that, (4) Where a Bill is presented to the President for assent, he shall within 30 days thereof signify that he assents or that he withholds assent. (5) Where the President withholds his assent and the Bill is again passed by each House by two-thirds majority, the Bill shall become law and the assent of the President shall not be required.

There was a similar provision under s.55 in respect of Money Bills: (4) Where the President within 30 days after the presentation of the Bill to him fails to signify his assent or where he withholds assent, then the Bill shall again be presented to the National Assembly sitting at a joint meeting and if passed by two-thirds majority of members of both Houses at such joint meeting, the Bill shall become law and the assent of the President shall not be required.

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49 18 Edw. 1, Stat. 1, c.1.

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Understanding Statutes

The importance of the Assent can also be gleaned from ss 55, 56 and 57 of the Constitution Acts 1867 to 1982 of Canada: 55.

Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the Queen’s name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.

56.

Where the Governor General assents to a Bill in the Queen’s name, he shall by the first convenient Opportunity send an authentic Copy of the Act to one of Her Majesty’s Principal Secretaries of State, and if the Queen in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor General, by Speech or Message to each of the Houses of the Parliament or by Proclamation, shall annul the Act from and after the Day of such Signification.

57.

A Bill reserved for the Signification of the Queen’s Pleasure shall not have any Force unless and until, within Two Years from the Day on which it was presented to the Governor General for the Queen’s Assent, the Governor General signifies, by Speech or Message to each of the Houses of the Parliament or by Proclamation, that it has received the Assent of the Queen in Council.

The Preamble The Preamble to an Act of Parliament is a recital of the facts that led to the enactment of the Act, and gives an idea of its main object. It provides an historical conspectus – ‘a key to open the minds of the makers of the Act, and the mischiefs which they intended to redress’. However, although the Preamble is intended to recite the facts upon which the Act is based, the facts so recited cannot be accepted by the courts without challenge or accepted as conclusive evidence. In R v. Haughton (Inhabitants)50 Lord Campbell said that A mere recital of an Act of Parliament, either of fact or law, is not conclusive, and we are at liberty to consider the fact or the law to be different to the statement in the recital.51

In Edinburgh and Glasgow Ry v. Linlithgow Magistrates,52 Lord Campbell

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50 (1853) 6 Cox c.c.101; 1E&B, 501 at p.506. 51 See also Merttens v. Hill [1901] 1 Ch. 842 at p.852.

Introduction

19

added that, The recitals in a statute cannot bind those who are not within the enacting part.

It should be noted, however, that the Preamble precedes the enacting part of an Act of Parliament. The onus is on those who challenge the recital to establish its falsity. But no court now would impugn the validity of an Act of Parliament on the ground that it is based on an erroneous set of facts. In Labrador v. R53 Lord Hanner said that, Even if it could be proved that the legislature was deceived, it would not be competent for a court of law to disregard its enactments. If a mistake has been made, the legislature alone can correct it… The courts of law cannot sit in judgment on the legislature, but must obey and give effect to its determination.

Acts of Parliament promoted by private, sectional or local interests are normally introduced in Parliament as a petition. This is a requirement of parliamentary procedure. Invariably, there is a Preamble which sets out (in detail, at times) the reasons for the introduction of the measure. The proper function of a Preamble is thus to explain certain facts which need to be grasped before the enactment contained in the Act can be understood.54 Section 12 of the Interpretation Act of Canada55 provides that, The preamble of an enactment shall be read as a part thereof intended to assist in explaining its purport and object.

The Titles There are now two titles to an Act of Parliament: the Short Title and the Long Title. The Long Title is an important part of the Act – it can be looked at in order to remove an ambiguity in the words of the Act.56 In Fielden v. Morley Corporation,57 Lindley MR referred to the Long Title and said: I read the title advisedly because now and for some years past the title of an Act of Parliament has been part of the Act. In old days it used not to be so, and in the old law books we were told not to regard it; but now the title is an

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52 (1859) 3 Macq, HL, (Sc) 691 at p.704. 53 [1893] AC 104 at p.123. 54

Lord Thring, Practical Legislation p.92.

55 1967-1968 c.7. 56 Commber v. Berks JJ (1882) 9 QBD 17 at p.33. 57 [1899] 1 Ch. 1 at p.4, See also [1900] AC 133.

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Understanding Statutes

important part of the Act, and is so treated in both Houses of Parliament.

The Long Title indicates the nature of the legislative measure. It contains the main theme or themes of the Act, and can thus be used in order to determine the scope of the Act and the proper construction to be adopted in order to resolve a doubt or an ambiguity. It is a device to tell the reader what the Act is about in the absence of the Memorandum to the Bill or the Preamble, but it cannot be used in construing a provision of an Act where the words are clear. The meaning of the clear words of an Act cannot be narrowed or restricted by reference to the Long Title. In Vacher v. London Society of Compositors,58 Lord Moulton said: The title is part of the Act itself and it is legitimate to use it for the purpose of interpreting the Act as a whole and ascertaining its scope.

The Short Title is the name used for an Act of Parliament for reference purposes. It is used to obviate the necessity of having to refer to the full and descriptive title of the Act. It is a good general description of all that is done by the Act. 59 The object of the Short Title ‘is identification and not description’,60 but it could be used to assist in the interpretation of the Act.61 Marginal Notes A section of an Act of Parliament has a marginal note, which is intended to indicate the general contents of the section. It describes, but does not necessarily summarise, the provisions of the section to which it relates. The general rule is that it is not an aid to the interpretation or construction of an Act. In Venour v. Sellon,62 the marginal note was relied on to support a view ‘that the marginal notes of Acts of Parliament now appear on the Rolls of Parliament, [and] consequently form part of the Acts.’ But in AttorneyGeneral v. GE Ry63 it was noted that the House of Commons never has anything to do with a marginal note. In relation to a local Act, Phillimore LJ said:64 I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is formed, as will be seen in reference to the cases, upon the principle that those notes are inserted not by Parliament __________________________________________________________________________________________________________________________________________

58 [1913] AC 107, at p.128. 59

Middlesex Justices v. R (1884) 9 App. Cas. 757 at p.772.

60 Vacher and Sons Ltd. v. London Society of Compositors [1913] AC 107 at p.128. 61 Lonhro Ltd. v. Shell Petroleum Co. Ltd (No. 2) [1981] 2 All ER 456. 62 (1876) 2 Ch. D. 522. 63 (1879) 11 Ch. D. 449. 64 Re Woking Urban District Council (Basingstoke Canal) Act, 1911 [1914] 1 Ch. 300 at p.322.

Introduction

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nor under the authority of Parliament, but by irresponsible persons.65

It is now quite settled that a marginal note in an Act of Parliament does not constitute a legitimate aid to the construction of the section to which it relates. Chandler v. DPP66 appears to have set the seal on the issue. Lord Reid stated quite categorically that side notes cannot be used as an aid to construction. They are mere catchwords and [no] amendment to alter a sidenote could be proposed in either House…. So sidenotes cannot be said to be enacted in the same sense as the long title or any part of the body of the Act.

The House of Lords thus held that the marginal note to s.1 of the Official Secrets Act 1911,67 ‘Penalties for spying’, did not restrict the actual words of s.1 of the Act. The section made it an offence for a person who, for purposes prejudicial to the safety or interests of the state, approaches, or is in the neighbourhood of, or enters, a prohibited place. The offence was not committed by a person taking part in a political demonstration who had no intention of spying. Section 13 of the Interpretation Act of Canada68 provides that, Marginal notes and references to former enactments in an enactment after the end of a section or other division thereof form no part of the enactment, but shall be deemed to have been inserted for convenience of reference only.

Headings and Parts Headings and Parts are used in legislation as a guide to the subject matter of an Act.69 A Heading does not form part of the Act and is not voted on in Parliament.70 Headings are unamendable descriptive components and are in that sense, like anything else in an Act, part of the Act as passed by Parliament. They may be considered in construing a provision of the Act, provided due account is taken of the fact that their function is merely to serve as a brief, and therefore necessarily inaccurate, guide to the material to which they are attached.71

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65 Is that so? One may ask whether those who draft the Bills which are introduced into Parliament are irresponsible persons! But then the word ‘irresponsible’ used here means not responsible to Parliament in the sense in which, say, a Minister is responsible to Parliament. 66 [1964] AC 763. 67 1 & 2 Geo. Vict. c.28. 68 1967-1968 c.7. 69 Driedger, The Composition of Legislation. 70 R v. Hare [1934]1 K. B. 354. See also Esso Petroleum Co. Ltd. v. Ministry of Defence [1990] All ER 1. 71 Bennion, Statutory Interpretation, 1st ed. p.590.

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Understanding Statutes

Only Acts of considerable size are divided into Parts. There is no sense in dividing an Act of, say, 10 sections into Parts. Headings would do. An Act is divided into Parts to improve readability, as a book is broken up into chapters. Sir Courtenay Ilbert recommended that a complex statute might be divided into Parts, ‘each Part being treated as a simple Act and containing its principle or leading motive in concise form at the outset of the Act’.72 The division of an Act into Parts is generally frowned upon unless the subjects are such that they could appropriately be embodied in separate Acts. Parts are more frequently used now as an aid to the better arrangement of lengthy Acts or to permit segments of an Act to be referred to more easily. An Act may also be divided further into Divisions or other subdivisions of a Part. No such arrangement of an Act should be undertaken unless the context of the Parts or other subdivisions relate to a single or related subject: The framework of a Bill may be made more intelligible by dividing it into parts and by grouping clauses under italic headings.73

Excessive subdivision should be avoided. The division of an Act into Parts may affect its construction by indicating the scheme of arrangement.74 The Interpretation Section An Interpretation Section is used to define certain words or sets of words used in the Act. These definitions determine the extent of the meaning to be given to the word or words so defined. There are two forms of definitions: the restrictive form where ‘means’ is used, and the extensive form where ‘includes’ is used. When ‘means’ is used the definition is explanatory – and therefore restrictive. When ‘includes’ is used the definition is extensive, in the sense that the ordinary dictionary meaning is intended – that is to say, the ‘ordinary, popular and natural sense’. However, the meaning is also extended ‘to some things to which it would not ordinarily be applicable’. Thus ‘street’ would be enlarged to include a highway. But it would be wrong to define ‘animal’ as including ‘man’, whatever the scientists say. In Robinson v. Barton Eccles Local Board,75 Lord Selborne said that, An interpretation clause of this kind is not meant to prevent the word receiving its ordinary, popular, and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject-matter to the contrary, to be applied to __________________________________________________________________________________________________________________________________________

72 Mechanics of Law Making, p.17. 73 Ilbert, Legislative Methods and Forms, p.245. 74 Ilbert, Legislative Methods and Forms, pp.245-246. 75 (1883) 8 App. Cas. 798 at p.801.

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some things to which it would not ordinarily be applicable. I look upon this portion of the interpretation clause as meaning neither more nor less than this, that the provisions contained in the Act as to streets, whether new streets or old streets, shall, unless there be something in the subject-matter or the context to the contrary, be read as applicable to these different things. It is perfectly consistent with that, that they should be read applicable, and should be applied, to those things to which they in their natural sense apply, and which do not require any interpretation clause to bring them in.

In other words, an interpretation section is used for the purpose of interpreting words which are ambiguous or equivocal, and not to disturb the meaning of such as are plain,76 nor is it used to prevent the operation of the word in its primary and obvious sense.77 There may be cases where a word is defined in an Interpretation Section out of the abundance of caution. It is as well, therefore, to bear in mind that the Interpretation Section of an Act applies only where there is no contrary intention. A definition in an Interpretation Section does not seek to substitute a word or one set of words for another word or another set of words. It does not strictly define the meaning to be given to the word or words in every conceivable case, but rather declares the ambit within which the word or words defined may be understood. The Enacting Sections An Act of Parliament is divided into sections, which may be divided into subsections or paragraphs. The division into paragraphs is to help readability and reduce ambiguity to a minimum. It ensures precision and helps in the understanding of the legislative sentence. A section is intended to contain one idea and therefore one enactment, but where the composition of the legislative sentence turns out to be a long one, the sentence is broken up into subsections or paragraphs. The subsections or the paragraphs read together must form a coherent and a consistent whole. The sections, numbered consecutively and taken as a whole constitute the Act of Parliament. The earliest statutes were written in Latin. The Provisions of Merton (1235)78 used the words Provisum est – It is provided. The words introduced each enactment since in the earliest days the statutes were in one piece. There were no sections, subsections or paragraphs. Thus each provisum est, or purveu est, or est acorde ordine establi79 provided the clue to each enactment, __________________________________________________________________________________________________________________________________________

76

R v. Pearce (1880) 5 QBD 306 at p.389.

77

London School Board v. Jackson (1881) 7 QBD 502 at p.504.

78 20 Hen. 3. 79 Statute of Westminster, 1275, for example.

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Understanding Statutes

that is to say, to each section. Today, the Enacting Formula has replaced the repetition of It is provided before each enactment.80 Section 2 of the Interpretation Act, 1850,81 provided that, All Acts shall be divided into sections if there be more enactments than one which sections shall be deemed to be substantive enactments without any introductory words.

The Interpretation Act 1889,82 by s.8, briefly provided that, Every section of an Act shall have effect as a substantive enactment without introductory words.83

The sections of an Act of Parliament are thus the operative parts of the Act. They declare the law. Lord Thring considered an Act of Parliament ‘… as a series of declarations of the Legislature’.84 The Schedules A Schedule may be attached at the end of an Act of Parliament. It is an operative part of the Act, and is part of the section which induces it. Its provisions may be as important as a section’s. It may: • incorporate part of the operative provisions of the Act; • contain provisions of a transitional nature; • contain a number of amendments which are better dealt with in the Schedule than in the main body of the Act. In Attorney-General v. Lamplough85 it was stated that, A schedule in an Act is a mere question of drafting, a mere question of words. The schedule is as much a part of the statute, and is as much an enactment as any other part.

But in Re Baines86 Lord Cottenham stated that, If the enacting part of the statute cannot be made to correspond with the schedule, the latter must yield to the former. __________________________________________________________________________________________________________________________________________

80 It also seems to be the origin of the use of the expression Provided that which is used to introduce a proviso. 81 13 & 14 Vict. c.21, usually referred to as Lord Brougham’s Act, 1850. 82 52 & 53 Vict. c.63. 83 Now replaced by section 1 of the Interpretation Act, 1978 c.30, where the wording is, ‘Every section of an Act takes effect as a substantive enactment without introductory words.’ 84 Practical Legislation, p.26. 85 (1878) 3 Ex D 214 at p.229. 86 (1840) 12 A & E 227.

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25

And in the words of Lord Penzance in Dean v. Green,87 It would be contrary to the principles on which courts of law construe Acts of Parliament to enlarge the conditions of an enactment by reference to words given in a schedule.

In more modern times, Lord Wilberforce said in Floor v. Davis88 that: Using a modern technique, Parliament has placed most of the wording and detailed provisions in lengthy schedules.

Forms provided for in a Schedule to an Act of Parliament are meant to be strictly followed. However, deviations from a Form would not invalidate the Form used provided the essentials of the Form as provided for are adhered to. But Saunders v. White89 is authority for the proposition that if the Form is imperative then it must be strictly followed.90 Punctuation The notion that punctuation forms no part of an Act of Parliament is no longer tenable. It may be that the old statutes as engrossed on the Parliament Roll did not have punctuation,91 but the modern view seems to have been expressed by Lord Lowry: I consider that not to take account of punctuation disregards the reality that literate people, such as parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament?92

Words – Meaning, Ambiguity, Vagueness, etc Aristotle defined words as ‘the smallest significant units of speech’. To modern linguists words are semantic units and morphemes as ‘the minimum meaningful unit of speech’.93 For example, the word ‘stonehouses’ consists of __________________________________________________________________________________________________________________________________________

87 (1882) 8 PD 79. 88 [1979] 2 All ER 677 at p.679. 89 [1902] 1 KB 472. 90 See also Thomas v. Kelly (1880) 13 App. Cas. 506, Wing v. Epsom Urban District Council [1904] 1 KB 798 and Burchell v. Thompson [1920] 2 KB 80. 91 See Craies on Statute Law 12th ed. 13, Lord Reid in IRC v. Hinchy [1960] AC 748 at p.765, Bennion, Statute Law 2nd ed. p.57 and Crabbe, Legislative Drafting, pp.84-103. 92 Hanlon v. The Law Society [1980] 2 All ER 199 at p.221. See also Houston v. Burns [1918] AC 337 at p.348. 93 Stephen Ullman, Semantics: An Introduction to the Science of Meaning, p.26.

26

Understanding Statutes

three morphemes – ‘stone’, ‘house’ and ‘s’. The morphemes ‘stone’ and ‘house’ are known as free morphemes. They are capable of standing independently, while ‘s’ is a bound morpheme which cannot. Other examples of bound morphemes are ‘ly’ in ‘lately’ and ‘ed’ in ‘accepted’. Our usual concept of a word is that it is a unit of meaning, a distinct unit in the pattern of language. Although words usually perform their communicative function jointly, they enjoy a measure of independence on the printed page and in the dictionary. Stephen Ullman94 observes that vocabulary ‘gives the impression of a vast filing system in which all items of our experience are docketed and classified’. Each word stored in the mind has a meaning or meanings attached to it. Words are symbols used to express a thing or an idea. The theory of words as symbols is well explained by Ogden and Richards.95 The core of their theory is that words in themselves are nothing – ‘the verberation of air’.96 Their importance lies in the fact that they are symbols – signs that are consciously designed to stand for particular objects, things or situations. Words are a special class of symbols – the most important in ordinary thinking and communication. When used, a word stimulates a mental reference to an object or situation in the real world. The relationship between a word and the object or situation it symbolizes is always indirect; between them there always intervenes the thought of a person. Thus, the object or situation causes a thought in the mind of a speaker or writer and that person uses a word to express thought. In listening or reading, the process is reversed: the word brings about the thought which refers to the object or situation. Although we usually refer to words as symbolizing objects, it is important to bear in mind the scenario: object to thought to word, or word to thought to object. In the field of understanding statutes the lessons are obvious. Firstly, it helps to avoid two common errors in the use of words pointed out by Glanville Williams. 97 There is the idea that words are important in themselves, irrespective of their symbolic meaning. There is the notion that real distinctions exist where in fact the only distinction is between two forms of words. The idea that words have existence and power, that they are equivalent to the things and persons they denote or nearly so is common amongst lawyers. Chafee98 writes: __________________________________________________________________________________________________________________________________________

94

Stephen Ullman, ibid, p.39.

95 C. K. Ogden and I. A. Richards, The Meaning of Meaning (1936). 96

Partridge v. Strange (1552/3) 1 Plowd. 83. Quoted by Glanville Williams, ibid, p.73.

97 Glanville Williams, ibid, p.74. 98 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.384.

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27

Lawyers and judges are highly susceptible to the notion of an indissoluble link between the word and the thing.

The first useful lesson from the Ogden and Richard theory is that since the relationship between a word and what it symbolises is always indirect, it follows that a word can never be the same as what it points to. A word is no more and no less than a symbol and must do what it is told. Lord Diplock observed in Carter v. Bradbeer,99 with respect to the word ‘bar’ under ss 76(5) and 201 of the Licensing Act of 1964, that, if a case which turns entirely upon the meaning to be ascribed to words used in a statute gets as far as your Lordships’ House … on that question your Lordships constitute the court of last resort. So the words mean whatever they are said to mean by a majority of the members of the Appellate Committee dealing with the case, even though a minority may think otherwise.

This echoes Humpty Dumpty’s100 famous boast: When I use a word … it means just what I choose it to mean, neither more nor less.

However, words as symbols must be interpreted as all symbols eventually are interpreted. Where we fail in that, we fail to communicate. In normal usage, words are conventionalised symbols and communicate only when so used. Thus, the definition of a word should not stipulate a matter which does not ordinarily come within its scope or which is substantially different from the conventional usage.101 For example, the word ‘horse’ should not be defined to include ‘cow’, nor should ‘land’ be defined to include ‘ship’. The notion that a word inevitably and unalterably belongs to a particular thing or person is a common error. This is the tendency to believe that a word points to a particular object and only that object, and that no other word can point to it. In law this takes the form of making legal results depend entirely on verbal distinctions. In National Society v. Scottish National Society,102 a testator who had spent all his life in Scotland bequeathed 500 pounds sterling to ‘The National Society for the Prevention of Cruelty to Children’. These words corresponded to the charter name of a London Society which did no work in Scotland. The testator had never heard of the London Society. Nearer home there was a branch office of the Scottish National Society for the Prevention of Cruelty to Children, whose activities the testator knew. The question was, which charity should get the bequest?

__________________________________________________________________________________________________________________________________________

99 [1975] 1 WLR 1204 at 1205. 100 Lewis Carroll, Through the Looking Glass. 101 Namasivayan, The Drafting of Legislation, p.73. 102 [1915] AC 207.

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Understanding Statutes

The Scottish Courts awarded the bequest to the Scottish Society as the testator clearly intended. Yet to the House of Lords, the testator ‘had by name designated the London Society’, and that Society was ‘the possessor of the name mentioned in the will’. The House of Lords clung to the notion that the Scottish Society had only one name which the testator should have used to reach it. They failed to consider the fact that the Scottish Society may have had other names. That a corporation should use its corporate name in formal documents is not in doubt. But, surely, it is not unusual for a corporation to be referred to by an abbreviation or by another name in ordinary conversation. We refer to the University of Oxford as ‘Oxford’. But ‘Oxford’ is also the name of a city. We refer to the Honourable Society of the Inner Temple as the ‘Inner Temple’. The latter expression has nothing to do with sanctum sanctorum. It is possible that, at that time, the name used by the testator was commonly used by Scots people for the Scottish Society, a fact which the Scottish courts no doubt recognised. The House of Lords, however, insisted that they were following ‘the meaning of the words used’. But then what did ‘meaning’ mean? Obviously not the intention of the testator, not common usage, not the opinion of the average reasonable Scot under the circumstances. We thus turn to the theory of Ogden and Richards. Since the relationship between the word and the object involves two steps, that is to say, word to thought to object, two different mistakes may occur. First, the thought may not adequately represent the object, as when parties buy and sell a racehorse that is, in fact, dead. Chafee103 classifies this kind of mistake as Error. Secondly, the word may not correctly express the thought, as where a deed describes the east half of Blackacre when the parties intended the west half. This latter mistake Chafee classifies as Mistake of Expression. The distinction between the two is important. The remedy for Error is to rescind the bargain. The remedy for Mistake of Expression is to remould the writing to the actual intention. This little excursus bears direct relevance to an understanding of an Act of Parliament. Lord Denning104 writes that the courts stuck to the ‘golden rule’ by which statutes were interpreted according to the grammatical and ordinary sense of the words, even if this gave rise to unjust results which Parliament never intended. The trend now is that the courts tend to look at ‘the intention’ of the legislature, that is, the spirit and purpose of legislation. Where the words are clear and cover the situation at hand, the courts need not go further. It is only where the intention is not clear or there is doubt that __________________________________________________________________________________________________________________________________________

103 Z. Chafee, ‘The Disorderly Conduct of Words’, 41 Col LR p.386. 104 Lord Denning, The Closing Chapter, p.95.

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29

the courts resort to their own interpretation of the words used. Worse still, where there is a gap in a statute, where something not foreseen by Parliamentary Counsel or by Parliament itself has taken place, the courts are sometimes reluctant to ‘legislate’ to fill the gap even though they may ultimately be forced to. Although in the last resort, the words of a statute will mean what the judges say they mean, in practice judges are unlikely to produce strained interpretations of a statute. It would cost them the respect and approval of society. Charles Lewis105 has pointed out that the judges themselves have too much respect for language and semantics generally and for the conventions of the constitution to want to replace them with a scheme of their own making. Responsible judges will therefore do no violence to the language of a statute if it is clear. They are ‘philologists of the highest order.’106 Clear words are not likely to be litigated. The practical application of this to an understanding of statutes is simple. An Act of Parliament represents what the promoters of the original Bill intended to convey. It is, in reality, intended to represent the contingencies for which it was conceived. The words and phrases used express the stated intentions and no more. This demands a considerable degree of clarity and precision in the use of words, and demands the utmost in simplicity of expression. Lord Denning107 has stated that all statutes passed by Parliament should be expressed in such words that all those affected by the statutes should understand them without recourse to lawyers. And those who draft Acts of Parliament must be experts in the use of words. From the theory of words as symbols, there are two useful lessons. Firstly, words exist only as symbols to do our bidding; they mean what they are intended to mean in a given context. Secondly, words are not inevitably and unalterably chained to the objects they symbolise. Different words may be used to mean different things and they may be used to mean the same thing. It follows that words have no absolute and no proper meaning. This leads to the last and most important lesson: words are a most imperfect means of communication. Amongst their imperfections are vagueness, ambiguity, and instability. In Helvering v. Gregory,108 Justice Learned Hand said that, the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create. __________________________________________________________________________________________________________________________________________

105 ‘The Truth About Statutory Interpretation’ (culled from Guardian Gazette No. 27 Vol. 24 of 27.7.77). 106 Ex p. Davis (1857) 5 WR 522 at p.523. 107 Lord Denning, The Closing Chapter, p.92. 108 69 F 2d 809, at p.810 (1934).

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Understanding Statutes

Shall and may In the structure of the legislative sentence shall and may play a very important part. They are the legislative auxiliaries, expressing the legal action in a provision of an Act of Parliament. They are the enacting verbs in the legislative sentence; its copulae. They have different functions in the legislative sentence, and are not interchangeable. In legislation, the auxiliary verb shall invariably denotes an imperative rather than futurity. It usually implies futurity in a will, when phrases like shall be born or shall predecease me are used. In these instances shall is used to refer to events occurring after or before the death of the testator. An Act of Parliament may provide that the Act shall have effect, or the Act shall apply, or a person shall be entitled. In these circumstances it is best to use the present indicative: it takes effect, it applies, a person is entitled. In other words, shall should not be used where there is no command. This brings us to a consideration of the principles governing the use of shall in a legislative sentence. Here the word is generally imperative or mandatory. In its ordinary signification, shall is a word of command. It is a word which should normally be given a compulsory meaning, because it is intended to denote an obligation. The auxiliary verb shall should be used only where a person is commanded to do something.109 It is thus not appropriate, for example, to provide that a person shall receive a pension on retirement. Is that person bound to take whatever amount is given as pension? What is intended is an entitlement, that is to say, a right to a pension on retirement. There is no obligation placed on any person to give the pension. The use of shall, therefore, in those circumstances is inconsistent with the concept of discretion or the exercise of discretionary power. Shall has the ability to exclude the idea of discretion and gain the significance of imposing a duty, an obligation which would be enforced, particularly if it is in the public interest to do so. Shall, however, is sometimes intended to be directory only. In that case, it is the equivalent of may, and will be construed as being merely permissive in order to carry out the legislative intention. This usually applies in cases where no right or benefit accrues to anyone, or where no public or private right is impaired by its interpretation as being directory. Thus where an Act of Parliament confers a right of appeal and provides that notice of appeal shall be filed within thirty days, the shall here is not used in the mandatory sense. It is used as a procedural direction, stating the time within which the right of appeal may be exercised. A few cases will illustrate the approach of the courts to the use of shall in the mandatory or the directory sense. In R v. Secretary of State for Social __________________________________________________________________________________________________________________________________________

109 Driedger, The Composition of Legislation, pp.9-12.

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Services ex p. Association of Metropolitan Authorities,110 the Secretary of State was empowered by the Social Security and Housing Benefits Act 1982111 to make Regulations setting up a housing benefits scheme. Under the scheme, eligible persons were entitled to receive housing benefits in the form of rent allowance, rent rebate or rebate. The administration of the scheme was in the hands of the local authorities, which bore 10% of the cost of the scheme. Section 36(1) of the Act stated: The Secretary of State shall consult with organisations appearing to him to be representative of the authorities concerned.

The Minister wrote to the applicant organisation, an association of local authorities, requesting their views on a proposed amendment. The time given for the consideration of the proposed amendment was not sufficient. When the amendment was passed, the organisation applied for judicial review, claiming, inter alia, that the obligation to consult contained in s.36(1) was mandatory and not directory and therefore the Minister had failed to comply with the duty. The court held that the obligation imposed on the Secretary of State was mandatory rather than directory because the day-to-day administration of the scheme fell on the authorities. Similarly, shall, in s.21 of the Magistrates’ Courts Act 1980,112 was held to be mandatory in the case of R v. Liverpool Justices, ex p Crown Prosecution Service.113 The section reads: If, where the court has considered as required by section 19(1) above, it appears to the court that the offence is more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to enquire into the information as examining justices.

The court held that shall was mandatory, for once a trial on indictment is ordered under that section, there is no power to vary the decision save as provided for in s.25 of the Act. However, the words shall give not less than ten days’ notice in s.16(1) of the Company Directors Disqualification Act 1986114 held to be merely directory and not mandatory. Therefore, failure to give the ten days’ notice did not render the application for a disqualification order either void or voidable: Secretary of State for Trade and Industry v. Langridge.115 __________________________________________________________________________________________________________________________________________

110 [1986] 1 All ER 164. 111 C.24. 112 C.43. 113 (1990) 90 Cr. App. R. 261. 114 C.46. 115 (1991) 2 WLR 1343.

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Understanding Statutes

In arriving at that decision, the court engaged in what it called a ‘balancing exercise’. It looked at the general object of the Act: for the protection of the public. It looked at the object of the ten days’ notice: it is for the protection of the person against whom an application for a disqualification is made. The court then felt that the ten days’ notice period only allowed a recipient to produce clear evidence of mistaken identity, or seek to challenge, by way of judicial review, the lawfulness of a disqualification order against the recipient. Beyond that the period only served to limit the shock the recipient might otherwise sustain if the first intimation of the application is when the proceedings are served on the recipient. The notice was seen as a mere ‘unparticularised letter before action,’ conferring only a limited benefit on the recipient. Further, even if the failure to give the ten days’ notice rendered the order void, all the Secretary of State had to do was to recommence proceedings. The court found it difficult to conceive that Parliament intended so pointless and wasteful a result. The above case illustrates an instance where the court felt obliged to construe shall as directory – perhaps a judicial amelioration of a drafting error. Yet the moral is that a duty should not be disguised as a discretion nor should a discretionary power be disguised as a duty. That accounts for the provision in the Interpretation Act of some jurisdictions that shall should be construed as mandatory and may as permissive. The word may is an auxiliary verb which is normally used in a legislative sentence to confer a power, a privilege or a right. Its use implies the permissive, the optional or a discretionary power or conduct. As a general rule, may is not a word of command. It would be construed as implying a command where there is something in the context or subject matter of the legislative sentence to indicate that it is intended to do so. There are thus occasions when the courts not infrequently have construed may as shall, to the end that justice may not be the slave of grammar. May, therefore, in its ordinary meaning, gives an enabling, a discretionary power. Case law shows that it scarcely needs an adventitious aid. It is only where, for example, may is found in a section which for other purposes employs imperative words that problems arise. In R v. Southwark Crown Court, ex p. Commissioners of Customs and Excise,116 there was an application by the Customs and Excise Commissioners for a judicial review of a judge’s order. The order had placed restrictions on the removal of bank documents from the jurisdiction of the Court and the showing or reading of those documents to any representative of a foreign law agency. One of the grounds of relief was that on a true construction of s.27 of __________________________________________________________________________________________________________________________________________

116 (1989) 3 WLR 1054.

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the Drug Trafficking Offences Act 1986,117 the judge, on being satisfied that the conditions in s.27(4) were fulfilled, was obliged to make the order sought and had no discretion with regard to the making of the order for the imposition of conditions. Section 27 provides that, (1)

A constable … may, for the purpose of an investigation into drug trafficking, apply to a Circuit judge … for an order under subsection (2) below in relation to particular material or material of a particular description.

(2)

If on such application the judge … is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall (a) produce it to a constable for him to take away, or (b) give a constable access to it, within such period as the order may specify. This subsection is subject to section 30(11) of the Act.

(3)

The period to be specified in an order under subsection (2) above shall be given seven days unless it appears to the judge … that a longer or shorter period would be appropriate in the particular circumstances of the application.

(4)

The conditions referred to in subsection (2) above are (a) that there are reasonable grounds for suspecting that a specified person has carried on or has benefited from drug trafficking, (b) that there are reasonable grounds for suspecting that the material to which the application relates (i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made, and (ii) does not consist of or include items subject to legal privilege or excluded material, and (c) that there are reasonable grounds for believing that it is in the public interest, having regard (i) to the benefit likely to accrue to the investigation if the material is obtained, and

__________________________________________________________________________________________________________________________________________

117 C.32.

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Understanding Statutes

(ii) to the circumstances under which the person in possession of the material holds it, that the material should be produced or that access to it should be given. (5)

Where the judge … makes an order under subsection (2)(b) above in relation to material on any premises he may, on the application of a constable …. order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.

(6)…(9).

The court saw nothing in the words of s.27(2) to suggest that Parliament did not intend to confer a discretionary power on the Circuit judge to grant or refuse to grant an order even if the judge is persuaded that the conditions contained in subsection (4) are satisfied. Said Watkins LJ: Whilst we acknowledge that it is not easy to identify circumstances in which a judge might properly refuse to make an order when those conditions are satisfied, we are not persuaded that this is a subsection in which “may” can be construed as meaning “must” or “shall”… If Parliament had intended the judge to have no discretion at all, having been persuaded that subsection (4) conditions had been satisfied, it would readily have used the word “shall” as it did in s.27(3).

Thus, reading the section as a whole, the use of may in subsections (1) and (2), and the use of shall in subsection (3) clearly demonstrate that appropriate meanings were intended for may and for shall respectively. On the other hand, a contrary view was taken in R v. Tower Hamlets London Borough Council ex p. Chetnik Developments.118 The Borough Council refused to refund rates paid to it by the applicants in respect of premises which were not occupied at the time of the payments. Section 9(1)(c) of the General Rates Act 1967119 provided that the rating authority may refund any amount which has been paid by a person not liable to make the payment. The House of Lords held that while the use of the word may gave the authority some discretion in determining whether to make a repayment, it did not relieve the authority of its duty to take into consideration the object of s.9, which is to remedy an injustice. Said Lord Bridge of Harwich: If the rating authority…is not to be guided by the justice of making a refund, having regard to the circumstances in which the overpayment was made, I find it impossible to articulate any intelligible alternative principle to which the exercise of the discretion can sensibly be related. If there is no guiding __________________________________________________________________________________________________________________________________________

118 (1988) 2 WLR 654. 119 C.9.

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principle, the practical consequences must be that the decision whether or not to make a refund in any particular case may be purely arbitrary. I cannot believe that this is what Parliament intended.

Equally, in Bayliss v. Roberts,120 the court held that the words, he may be charged instead, imposed a mandatory duty on the tax inspector to raise additional Schedule D assessments under s.118(1)(b) of the Income and Corporation Taxes Act 1970.121 In this case, the Court looked at the legislative history of the Act, noting that its predecessor, the Finance Act 1926,122 did not have the effect of conferring a general discretion on inspectors and none of the subsequent statutory amendments had changed the law in that respect. Thus a contextual ambiguity was resolved by reference to external consistency, that is, to Acts in pari materia. The conclusion is that may never means shall in the ordinary meaning of the two words. May confers a power. It is a question whether in a particular case may can be construed as not conferring a power to impose a duty to exercise the power so conferred. Thus if the power conferred is to facilitate a legal right, the courts will construe may as shall. A public officer in the exercise of a public duty will be compelled by those for whose benefit the power was so conferred to exercise that power. In Attorney-General v. Antigua Times,123 the proviso to s.3(2) of the Newspaper Surety Ordinance (Amendment) Act 1971 provided that the Minister may waive the requirement of a deposit of $10, 000 if the Minister is satisfied with the sufficiency of the security in the form of a policy of insurance or a bank guarantee. The Judicial Committee of the Privy Council held that the proviso did not confer an unfettered discretion on the Minister. Said the Privy Council: The Minister is not given an unregulated and unfettered discretion without guidelines. His discretion is limited to determination of the sufficiency of the security offered.

And and or The use of the words and and or has given rise to not a few difficult problems of interpretation. The use of either of those words calls for a high degree of precision.124 An appreciation of the legal effect of the use of and or or would help in minimising the difficulty in the choice of which word to use. The __________________________________________________________________________________________________________________________________________

120 (1989) Simmon’s Tax Cases 693. 121 C.10. 122 16 & 17 Geo V, c.22. 123 [1976] AC 16. 124 Reed Dickerson, ‘The Difficulty of Choice Between And and Or’, ABA Journal 1960, p.310.

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Understanding Statutes

difference in meaning lies in this: or is disjunctive, and is conjunctive. And connotes togetherness. Or tells you to take your pick.125 The basic rule, therefore, is that and is used when the intention is to refer to one thing, such as a husband and father. Here the reference is to a person who is both a father and a husband. Where the reference is to two different persons but and is used, the expression would be a father and a husband. Even then the and is still conjunctive since both a father as one entity, and a husband as another entity, would be required to act – as in the sentence, A father and a husband shall file a statement. (The meaning becomes clearer when another word is substituted for husband: A father and a teacher shall sign the declaration form of a student.) Where or is substituted for and, the expression becomes a father or a husband shall file a statement – the reference here is to two separate categories of persons: one, those who are fathers; two, those who are husbands. Three situations are thus involved: 1. A husband and father, that is, one person who is a husband and at the same time a father. (Obviously there are fathers who are not husbands, and husbands who are not fathers. 2. A father and a husband: two separate people are referred to here, both of whom are commanded to act, or refrain from acting, in concert: (a) a father who is not necessarily, but could be, a husband, and a husband who is not necessarily, but could be, a father; (b) a father who is a husband and a husband who is a father; and (c) a father who is not a husband and a husband who is not a father. 3. A father or a husband, that is, either one, independently of the other, would act or refrain from acting, whether or not the father is also a husband and the husband is also a father.

Where there is an enumeration of subject-matters coupled with the exercise of a discretionary power, it is immaterial whether or or and is used, since in that case the discretion implies that the authority which has the discretion can – and would – act as that authority thinks fit in exercising the discretionary powers. Thus where it is provided that, The Minister may make Regulations providing for (a)………… (b)………… (c)………… (d)………… __________________________________________________________________________________________________________________________________________

125 Ibid 310.

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the Minister could issue a set of Regulations providing for (a), (b), (c) and (d). He could also issue, as he wishes, Regulations providing for only (a) at one time and another set of Regulations providing for (b) at another time, and so on. In this example the use of may governs what follows, so the use of and or or after each paragraph would not make much of a difference. A difficult situation arises when and and or are both used in the same legislative sentence. A father and husband or wife shall ... The problem here is that there is an ambiguity. The expression could mean 1. a father and husband, as one person, or a wife; 2. a father who is not a husband or a wife; 3. a husband who is not a father or a wife; 4. a father who is not a husband or a husband who is not a father or a wife.

In other words is the reference here to: 1. two persons, that is, (a) a person who is both a father and a husband, or (b) a person who is a wife (but not necessarily the wife of that husband); 2. three persons, that is, (a) a person who is a father but is not a husband, or (b) a person, who is a wife, and (c) a husband who may or may not be the husband of that wife; 3. two persons, that is (a) a person who is a husband but is not a father, or (b) a person who is a wife; 4. three persons, that is, (a) a person who is a father, or (b) a person who is a husband, or (c) a person who is a wife.

In the last example, 4, the and becomes an or. It is thus desirable to note the words of Lord Wilberforce in Anisminic v. Foreign Compensation Commission126:

__________________________________________________________________________________________________________________________________________

126 [1969] 2 AC 147 at p.214 (HL).

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Understanding Statutes

There remains, of course, the drafting of article 4(1)(b)(ii) “that the person referred to and any person who became successor in title,” which does not appear to suggest that a situation may exist where a successor in title is relevant even if the claim is made by the original owner. But I think that this is not decisive: it is merely the result of unfortunate telescopic drafting. The draftsman ought to have dealt separately with the two cases saying (i) if a claim is made by the person referred to as aforesaid that he was a British national ... (ii) if a claim is made by the successor in title of such person and such person succeeded before February 28, 1959, that both he and the person referred to as aforesaid were British nationals. We are well used to doing, by interpretation, this kind of work on the draftsman’s behalf, and I think we can do so here.

Vagueness A few words, like numbers, chemical formulæ and certain technical terms, have a distinctive meaning, constancy and exactness. Most other words do not have that constancy and exactness. Of this, Stephen Ullman127 wrote: The sense is visualised by modern thought as a series of concentric circles or zones, of varying determinateness: their inner core is more or less definite, whereas their outer fringes are vague, unstable and essentially “open” awaiting supplementary clarification from the context.

• • •

The three major sources of vagueness in words are: their generic character; their readiness to derive colour from the surrounding context; their capacity to evoke emotional responses.

Generic character Words commonly denote classes of things or events bound together by distinctive features common to all the objects in that class. The identification of these features, however, is often the source of heated court debates. This is so even in the case of common, familiar words which bring to mind mental pictures so clear that vagueness seems unlikely. The word shop brings to mind a structure containing goods for sale. But this image is not supported by two cases. In Warley Caravans v. Wakelin,128 an open site used for the business of selling caravans was held to be a shop. In __________________________________________________________________________________________________________________________________________

127 Words and Their Use, p.41. 128 [1968] 66 LGR 534.

Introduction

39

Greenwood v. Whelan,129 a market stall constructed of tubular steel upright supports and horizontal bearers bolted together, with a permanent awning, electrical light and illuminated sign, was held not to be a shop. The word family normally brings to mind a married couple and their children. Yet it was held in Dyson Holdings Ltd. v. Fox130 that a relationship between an unmarried man and an unmarried woman living together over a long period, but having no children, constituted a family relationship. It was said that family should not be construed in a technical or legal sense, but in the sense that would be attributed to it by the ordinary man in the street in view of the ‘permanence and stability of their relationship’. In Helby v. Rafferty,131 however, a similar relationship was held not to constitute a family in that it lacked ‘a sufficient degree of permanence and stability to justify the view that they were members of the same family’. The classification of abstract words is especially difficult. Unlike concrete nouns, where the intended reference is real or solid, the intended reference in the case of abstract words exists as a quality or concept with no physical existence. It has been said that although all words are symbols, some are closer to the five senses than others.132 Thus, at the bottom level we have John Kennedy, 195, Olive Drive, Cave Shepherd, Broad Street. On a higher level we have generalised words like judge, bank, ship, shop. Above these we have men, chattels, real estate. Still higher we have abstractions like mankind, property, democracy, freedom. Stuart Chase132 warns of the dangers we run as we go higher up the hierarchy: The more abstract the word, the greater the risk that any proposition in which it is used will not be true of all the persons and things within the class denoted by the word, and the more we are liable to forget that at the bottom we are talking about persons and things.

The generic nature of words is seen in words that perform an adjectival or adverbial function just as much as in nouns. Examples are reasonable, tall, short, neighbour, good, bad. These are relative terms, and the context in which they are used must set the yardstick for determining, for instance, what constitutes reasonable behaviour. Colour and context The readiness of words to derive colour from their context is another source of vagueness. Mr Justice Oliver Wendell Holmes133 once observed that, __________________________________________________________________________________________________________________________________________

129 [1967] 1 All ER 296. 130 [1976] 3 All ER 1030. 131 [1978] 3 All ER 1016. 132 Quoted by Z. Chafee, ibid, p.390. 133 Towne v. Eisner [1918] 245 US 418 at p 425.

40

Understanding Statutes

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may very greatly in colour and content according to the circumstances and the time in which it is used.

The colour varies according to the circumstances of their use, the context, the personality of the speaker or writer and the audience that is addressed. The word line, for example, will evoke a different image in the mind of the railway stationmaster, the printer, the palmist, the telephonist, the shopkeeper, the tennis player. The one meaning possesses various aspects. The context in which a word is used is crucial and vital to the meaning of that word. In dealing with the words, ‘property, affairs or government of cities’, Crane J asked: What do these words mean? Their colloquial significance would indicate that anything touching or pertaining to the affairs of a city or of the people thereof was within the breadth and scope of their intent. If we are satisfied with first impressions, if we do not look beneath the surface of the matter, if we ignore the past use of these words, then we may very well say that the statute under review, known as the Multiple Dwelling Law, is unconstitutional. If, however, we pause to consider whether these words had a special, legal significance, we find that there is another side to the question, and it is that which I desire to present as the basis for my conclusion. Words, like men, grow an individuality; their character changes with years and with use. It is common knowledge that many words have a meaning at law different from that of common speech – carelessness, negligence, fraud, theft, and the like – have a limitation not always given to them by the dictionary. Thus we expect that, if the words, “property, affairs or government of cities” have been previously used in statutes and in decisions with a limited meaning, this limited meaning was carried in article 12 of the Constitution. What subject more vitally touches the affairs of the city than rapid transport? The recent litigation in the federal courts, and the decision of the United States Supreme Court, show how necessary rapid transit is to urban life. (279 US 159, 49 S Ct 282, 73 L Ed Gilchrist v. Interborough Rapid Transit Co.). Stop the railroads, surface, subways, or elevated, in the city of New York, and the calamity, almost immediate, would be too direful for contemplation. An affair of the city! Any man in the street, or in the ordinary walks of life, conversant with New York City would say that the railroads, already half municipally owned, were a very important and vital affair of the city of New York.134

The effect of context on the meaning of a word may be compared to the effect of the environment on the social conduct of a people. Thus, where a word is used in legislation, the scope and purpose of that legislation is of great importance. Said Stamp J in Bourne v. Norwich Crematorium Ltd.135: __________________________________________________________________________________________________________________________________________

134 Alder v. Deegan, 167 N E 705 at p.706. 135 [1976] 2 All ER 576.

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41

English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately … and then put back again … with the same meaning you would have assigned to them as separate words, so as to give the sentence or phrase a meaning … it cannot bear without distortion of the English language.

Emotional responses The ability of words to evoke emotional responses is yet another source of vagueness. An Act of Parliament which evokes little or no emotional response has a very different effect when considered as it affects people in a real-life situation.136 Abstract words, which are by nature inexact are especially emotional. The emotions are stirred into frenzy by words such as democracy, colonialism, racial discrimination, apartheid. They are best avoided in legislation.137 One consequence of the vagueness of words is that although meanings generally overlap, complete synonymity does not exist. So in legislation words or phrases are used that most exactly convey the intended meaning in the intended context – second best is not good enough. Secondly, one word is used for one intended meaning, otherwise an inference will arise that a change of meaning is intended. It should, however, be noted that sometimes the nature of the work of Parliamentary Counsel forces them to use vague words in legislation. Where, for instance, all possible contingencies cannot be foreseen, Parliamentary Counsel may deliberately resort to vague terms. The usefulness of this was acknowledged by Lord Parker, LCJ, in Soil Fertility Ltd. v. Breed,138 when he said that, it may be that the legislation is deliberately vague in the matter in order that common sense should prevail according to the circumstances of each case.

Deliberate vagueness may also be useful where legislation deals with an explosive political issue and the resolution of the inherent difficulties is left to the courts. When the use of vague words is justifiable is a matter for careful judgment, but the general purpose and intended scope of the legislation must be clear from the context. The criteria to be applied should be determinable from the context, otherwise uncertainty in the law and to poor administration may result.139 __________________________________________________________________________________________________________________________________________

136 G.C. Thornton, Legislative Drafting, p.10. 137 But see Race Relations Act 1976, c.74. 138 [1968] 3 All ER 193 at p 196. 139 G.C. Thornton, ibid, p.13.

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Understanding Statutes

Ambiguity Ambiguity in the use of words is of three kinds: • syntactic; • semantic; • contextual. Syntactic ambiguity Syntactic (or grammatic) ambiguity results from combining words which are unambiguous when taken separately in such a way that they become ambiguous when read together. It often arises where • the modifier in a sentence is misplaced; • it is not easy to determine which of the words in the sentence the modifier qualifies; • there is an uncertainty of reference. In the sentence, ‘Mabel saw Janne strolling down the lane’ there is an ambiguity as to whether Mabel was strolling down the lane when she saw Janne, or whether it was Janne who was strolling down the lane when Mabel saw her. It may also not be possible to ascertain whether one or all items in a series are modified by an antecedent or subsequent modifier. In the sentence, ‘An owner, a lessee or a person operating an industrial plant shall pay a tax of three thousand dollars’ there is an ambiguity whether the words operating an industrial plant qualify only person or each of the other words, owner or lessee. Also in an enumeration such as orange, white and blue flowers, is the reference to multicoloured flowers or to orange flowers, white flowers, or blue flowers? A syntactic ambiguity may also arise where there is uncertainty as to whether a given word is part of the thing being modified. The expression, ‘a clear water container’ may mean a water container that is clear in colour, or a water container (whatever its colour) which is holding clear water. These examples provide ample illustration of the basic nature of the problem of syntactic ambiguity. Semantic ambiguity Many words in the English language have more than one meaning. The ambiguity here results from the word itself. Thus we pay dues to a golf club and use a golf club to hit a golf ball. The expression ‘a person who was divorced on the first day of January, 1894’ is open to two interpretations, depending on whether divorced is a past participle and the word was is part of the verb to be. Thus the provision would apply to a person who was already

Introduction

43

divorced on the first day of January, 1894, or to a person who acquired the status of a divorced person on the first day of January, 1894. When the objects for which a word stands are widely separated, no harm results: We invite our friends to a ball at a club house; a giant uses a club. However, when the same word signifies two or more ideas which are close together or overlap, confusion and obscurity are probable. The speaker or writer may end up using the word in more than one sense in the same context. For example, the word knowledge may be used for both the content of what is known and the process of knowing. Mr Justice Cardozo140 once observed that, when things are called by the same name, it is easy for the mind to slide into an assumption that the verbal identity is accompanied in all its sequences by identity of meaning.

Ambiguity also occurs where a word has both a general and a specialised meaning. Examples are the words action, suit, right, assignment. Contextual ambiguity This type of ambiguity arises where a pronoun is used in a situation where there are two or more persons referred to and it is not clear to which person the pronoun refers. This is what is known as the pronomial uncertainty. An example is: ‘The employer shall ascertain from the employee whether he is a graduate’. The pronoun he may refer to the employer or the employee. In legislation, therefore, the context should nullify the multiple meaning. Where this is not possible, a definition is normally provided. Also, where a word has both a general and a technical meaning, the context should always make clear which meaning the word is intended to have.

Instability Words owe their instability to the nature of language itself. It is a system that changes slowly with time. New words come into use and old ones change their meaning or fall into disuse. In this way, language keeps up with the progress of civilisation. It has been said that, the English language absorbs, rejects and adopts elements of vocabulary as it goes along.141

To keep up with social needs arising from this progress, legislation should happily employ new words when necessary. Examples of new words __________________________________________________________________________________________________________________________________________

140 Lowden v. Northwestern National Bank & Trust Co. [1936] 298 US 160 at p.165. 141 Robert Burchfield, The English Language, Oxford, 1985 p.113.

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Understanding Statutes

introduced into legislation in the last ten years are video142 and hijack.143 Such words are used only when they have attained a respectable stability of meaning. A word that appears to be in a fluid state is best avoided. We have thus far demonstrated the importance of the correct use of words in legislation. An understanding of the nature, function and imperfections of words can assist in an understanding of statutes, but it is not an easy task.

The Purpose – Communication The purpose of a statute is to communicate to its audience, be they all the people or some of the people, information that is intended to regulate its conduct or affairs. It could be for all the people, such as in the sphere of criminal law, or for the regulation of the affairs of a class of the people, such as an Act of Parliament to regulate the legal profession. It demands obedience. Disobedience leads to the imposition of sanctions – that is the punishment stipulated by the statute. It thus expresses legal relationships. Its language is part of the language of a people, and will be understood as language is understood. An Act of Parliament would be construed or interpreted in accordance with the principles that govern language as a means of communication. The ability to communicate, however, depends upon the ability to think. A sentence expresses a thought or an idea. Where the sentence follows the principles by which language is expressed, the meaning is made clear. Where the words are not arranged in a logical and the appropriate grammatical sequence, ambiguity or vagueness – even confusion – might ensue. In the words of James Carter,144 the purpose for which legislation is employed is political rather than juristic. It is intended to remove political evils and perfect the organisation and government of the state. Legislation aids the unwritten law of custom and thereby makes custom more effective. Yet nothing is more attractive to the benevolent vanity of men than the notion that they can effect great improvements in society by the simple process of forbidding a wrong conduct, or conduct which they think is wrong by law, and enjoining all good conduct by the same means; as if men could not find out how to live until a book were placed in the hands of every individual, in which the things to be done and those not to be done were clearly set down.

Until the dominance of Acts of Parliament emphasised their importance as a source of law, the law was largely made up of the decisions of the courts – in __________________________________________________________________________________________________________________________________________

142 The Video Recordings Act 1984 c.39. 143 The Aviation Security Act 1982 c.36. 144 Law: Its Origin, Growth and Function, Lecture IX, p.221.

Introduction

45

essence, the decisions of the appellate courts. Legislation is perhaps more important than the judge-made law, because judge-made law can be altered or abolished by an Act of Parliament. Where, as it has been shown,145 the courts by interpretation deviate from the path laid down by Parliament, Parliament can deal with the matter by a further or corrective Act of Parliament. Yet where an Act of Parliament purports to oust the Common Law, but does not go the whole distance, the Common Law can be called in aid. Equally, where an Act of Parliament is silent on a matter already governed by judge-made law, the absence of legislation tends to strengthen the relevant rules of the Common Law or of the doctrines of Equity. Therefore legislation by its true nature must carry the development of the law beyond the confines of the judge-made law, as Equity developed to correct the injustices of the Common Law, and deal with the Common Law and Equity. In the last resort, judge-made law cannot formulate all the adequate rules for dealing with the affairs of individuals and of governments. The principles of the Common Law and the doctrines of Equity in the end are not sufficient to deal with the practical adjustments required in our daily relationships with those who govern us. Lord Atkin said in Donoghue v. Stevenson146 that, The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour? receives a restricted reply… Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Clearly, Lord Atkin’s definition of neighbour is not precise. So many questions arise out of that definition: the duty to take care, the problems of moral blameworthiness, of foreseeability, of remoteness of damage. In the Donoghue case it was held that a manufacturer of chattels was under a duty to the ultimate user or consumer even though there was no contractual relationship between the two. The ultimate user or the consumer was held to be a neighbour of the manufacturer. And one wonders whether the neighbours in that case and in Rylands v. Fletcher147 ever loved their neighbours as themselves. But the reply to the question will find adequate expression in legislation which will lay down who is one’s neighbour. When that is done, a person who does not fall within the scope of neighbour as determined by legislation, or __________________________________________________________________________________________________________________________________________

145 See Le Neve v. Le Neve, fn 55 on p.79 (Chapter 3). 146 [1932] AC 562 at p.580. 147 (1868) LR 3 HL 330.

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Understanding Statutes

within any of the categories of neighbour as defined, is not a neighbour for the purposes of the law. Equally, equity never solved the problem of priorities between successive purchasers or mortgagees, because the only effective means of publicity, the public record of instruments, was entirely incapable of being established or required by the exercise of judicial power.148

It was left to the Settled Land Act 1925,149 the Trustees Act 1925,150 the Law of Property Act 1925,151 the Land Registration Act 1925,152 the Land Charges Act 1925,153 the Administration of Estates Act 1925,154 and their sequels, in the form of amendments and other relevant legislation, to deal with those matters which were ‘incapable of being established or required by the exercise of judicial power’. Measured quantity, conventional form, administrative arrangements, and (it should be added), compromise and concession, constitute the exclusive province of statute law.155

Judges, by adhering to the doctrine of stare decisis, find it difficult to break with the past. Legislation is not so hidebound. It avoids the waste in cost and in time attendant upon litigation and finds solutions to the crazy quilt of conflicting judge-made law. More importantly, legislation can and does take the initiative in solving urgent problems in a manner that the inertia of judges and random litigation cannot accomplish. Litigation is never conducted by reference to the orderly development of the law: consequently judge-made law also never proceeds on that basis. Litigation presents a motley parade of humanity in its various manifestations – the three divisions of the High Court of Justice in England attest to that. Judge-made law is a reaction to these present problems which relies on the past; as Maitland said, ‘the forms of action we have buried, they still rule us from their graves’.156 This is not so with an Act of Parliament – legislation considers the past, deals with the present, and speaks to the future. It can always clean the slate, transcend case and controversy, write and rewrite the law in consonance with the demands of society. __________________________________________________________________________________________________________________________________________

148 Ernest Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review 254, 269 (1918). 149 15 & 16 Geo Vict. c.18. 150 15 & 16 Geo Vict. c.19. 151 15 & 16 Geo Vict. c.21. 152 15 & 16 Geo Vict. c.22. 153 15 & 16 Geo Vict. c.22. 154 15 & 16 Geo Vict. c.23. 155 E. Freund, ‘Prolegomena To A Science of Legislation’, 13 Illinois Law Review, p.269. 156 Forms of Action at Common Law (1936), p.2.

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Legislation thus deals with measures designed to meet the cultural, economic and social problems of a given jurisdiction. It is therefore important to ponder a while on the famous words of Oliver Wendell Holmes,157 apposite to legislation as it is to the Common Law: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral or political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been and what it tends to become. We must alternately consult history and existing theories of legislation.

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157 The Common Law, p.1.

Chapter 2 The Function of the Courts

Interpretation and Construction less Legislation When Parliament enacts a statute, the courts interpret it, leading to the creation of Case Law. This is often called ‘judge-made’ law. Yet some, at least, of the judges claim that they do not make the law – they only interpret it. ‘My function’, said Wessels J in Seluka v. Suskin & Salkow1 ‘is jus dicere not jus facere’. Yet the great American judge Oliver Wendell Holmes, in a dissenting opinion, recognised ‘without hesitation that judges do and must legislate, but they do so interstitially; they are confined from molar to molecular motions.’2 It is instructive to contrast Holmes’ view with the debate between Lord Denning and Lord Simonds. In Seaford Court Estates Ltd. v. Asher,3 Lord Denning stated that, Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold set of facts which may arise, and even if it were, it is not possible to provide for them in terms free from all ambiguity…. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon’s Case, and it is the safest guide today…. Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.

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1

1912 TPD 258 at p.270.

2

Southern Pacific Co. v. Jensen (1917) 244 US 205 at p.221.

3

[1949] 2 KB 481 at p.499.

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Understanding Statutes

Lord Denning’s view of the function of the courts in the construction of an Act of Parliament appears to have been supported in the United States of America by Learned Hand J in United States v. Klinger4: The issue involves the baffling question which comes up so often in the interpretation of all kinds of writings: how far it is proper to read the words out of their literal meaning in order to realise their overriding purpose? It is idle to add to the acres of paper and streams of ink that have been devoted to the discussion? When we ask what Congress “intended”, usually there can be no answer, if what we mean is what any person or group of persons actually had in mind. Flinch as we may, what we do, and must do, is to project ourselves, as best we can, into the position of those who uttered the words, and to impute to them how they would have dealt with the concrete occasion. He who supposes that he can be certain of the result is the least fitted for the attempt.

Seaford Court Estates Ltd. v. Asher5 went to the House of Lords. The decision was upheld, ‘but it was there put by the majority of the House on traditional grounds’.6 Lord Denning thus took the opportunity in Magor and St. Mellon’s Rural District Council v. Newport Corporation7 to repeat what he had stated in the Seaford case: We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.

This approach was ‘roundly condemned’ by the House of Lords.8 Lord Simonds dealt with the matter in this way: My Lords, the criticism which I venture to make of the judgment of the learned Lord Justice is not directed at the conclusion that he reached …. I am content to say that I agree with my noble and learned friend. But it is on the approach of the Lord Justice to what is a question of construction and nothing else that I think it desirable to make some comment; for at a time when so large a proportion of the cases that are brought before the courts depend on the construction of modern statutes it would not be right for this House to pass unnoticed the propositions which the learned Lord Justice lays down for the guidance of himself and, presumably, of others. __________________________________________________________________________________________________________________________________________

4

199 F. 2d 645 at 648 (1952).

5

[1949] 2 KB 481.

6

Lord Denning, The Discipline of Law, p.13.

7

[1950] 2 All ER 1226 at p.1236.

8

Magor and St. Mellons Rural District Council v. Newport Corporation [1952] AC 189 at p.191.

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“We sit here”, he says,9 “to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” The first part of this passage appears to be an echo of what was said in Heydon’s Case10 300 years ago, and, so regarded, is not objectionable. But the way in which the Learned Lord Justice summarises the broad rules laid down by Sir Edward Coke in that case may well induce grave misconception of the function of the court. The part which is played in the judicial interpretation of a statute by reference to the circumstances of its passing is too well known to need restatement; it is sufficient to say that the general proposition that it is the duty of the court to find out the intention of Parliament – and not only of Parliament but of ministers also – cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited: see, for instance, Assam Railways & Trading Co. Ltd. v. Inland Revenue Commissioners,11 and particularly the observations of Lord Wright.12 The part of the passage that I have cited from the judgment of the learned Lord Justice is no doubt the logical sequel of the first. The court, having discovered the intention of Parliament and of ministers too, must proceed to fill in the gaps. What the legislature has not written, the court must write. This proposition, which restates in a new form the view expressed by the Lord Justice in the earlier case of Seaford Court Estates Ltd. v. Asher,13 (to which the Lord Justice himself refers), cannot be supported. It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act.

However, the Renton Report (1975)14 supported Lord Denning: We see no reason why the courts should not respond in the way indicated by Lord Denning. The courts should … approach legislation determined, above all, to give effect to the intention of Parliament. We see promising signs that the consideration is uppermost in the minds of the members of the highest tribunal in the country.

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9

[1950] 2 All ER 1226 at p.1236. 10 (1584) 3 Co. Rep. 7a. 11 [1935] AC 445. 12 Ibid 458. 13 [1949] 2 KB 481 at pp.498-9. 14 Cmnd 6053, para. 19.2.

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Understanding Statutes

Interpretation Interpretation, then, is a journey of discovery. It is the art of ascertaining the meaning of the words used in an Act of Parliament or other written document. Interpretation is authentic where the meaning is expressly provided for, as in the example: “child” means a person under the age of twenty-one years and who was born after the first day of January, 1962.

Two elements are involved here, that is to say, the age limit of twenty-one years and the fact of birth after the first day of January, 1962. Therefore, a person under the age of twenty-one years who was born before the first day of January, 1962, is not a child for the purposes of the law. Interpretation is usual or customary when it is based upon acceptance of the usage of the word or expression. A baker’s dozen is not twelve, it is thirteen – that is the accepted meaning in the baking trade. To a Barrister-atLaw, a guinea is not twenty-one shillings. It is twenty-three shillings and sixpence. An interpretation is considered doctrinal where the meaning of the words or expression used turns on the grammatical arrangement of the words of the sentence. Where the interpretation is based upon what is termed the intention of Parliament, the interpretation can be described as logical. Logical interpretation may be extensive, that is liberal interpretation, or restrictive, that is strict interpretation. Construction Construction is wider in scope than interpretation. It is directed at the legal effect or consequences of the provision called in question (and thus comes after interpretation). Having ascertained the meaning of the words, how do they fit into the scheme of the Act as a whole? We are in the realm of construction when the courts are dealing with such matters as casus omissus and time and circumstances of an Act of Parliament.

The Validity of an Act of Parliament In the United Kingdom, no court could or would declare an Act of Parliament as being illegal or unconstitutional.15 The courts do not sit as a court of appeal from Parliament. In the words of Lord Campbell, all that a Court of Justice can do is to look at the Parliament roll: if from that it should appear that a Bill has passed both Houses and received the Royal __________________________________________________________________________________________________________________________________________

15 But see p.16 et seq, on the Assent.

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Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its progress in its various stages through both Houses.16

In more modern times, Lord Wilberforce in Inland Revenue Commissioners & or v. Rossminster Ltd. & Others17 is of the opinion that while the courts may look critically at legislation which impairs the rights of citizens and should resolve any doubt in interpretation in their favour, it is no part of their duty, or power, to restrict or impede the working of legislation, even of unpopular legislation.

To this Lord Diplock added that, Judges, in performing their constitutional function of expounding what words used by Parliament in legislation mean, must not be over-zealous to reach for ambiguities or obscurities in words which on the face of them are plain, simply because the members of the court are out of sympathy with the policy to which the Act appears to give effect.18

Duport Steel Ltd. & Ors v. Sir & Others19 gave the House of Lords the opportunity to enlarge upon what it has stated in this regard in the Rossminster Case. In the Duport case, the Court of Appeal attempted to restrict the statutory immunity granted to trade unions by the Trade Union and Labour Relations(Amendment) Act 1976.20 That Act gave partial immunity to acts ‘done by a person in ... furtherance of a trade dispute’.21 However, Lord Diplock stated that, given the existence of a trade dispute, it involves granting to trade unions a power, which has no other limits than their own self-restraint, to inflict, by means which are contrary to the general law, untold harm to industrial enterprises unconcerned with the particular dispute, to the employees of such enterprises, to members of the public and to the nation itself, so long as those

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16 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F. 710 at 725. But see City of London v. Wood (1701) 12 Mod 669 at 687, where Holt CJ said that ‘if an Act of Parliament should ordain that the same person should be party and Judge, or, which is the same thing, Judge in his own cause, it would be a void Act of Parliament; for it is impossible that one should be Judge and party, for the Judge is to determine between party and party, or between Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd.’ And see also Day v. Savadge (1614) Hob. 85 at 87: ‘Even an Act of Parliament, made against natural equity, as to make a man a Judge in his own case, is void in itself.’ Quoted by Megarry, A Second Miscellany-at-Law pp.18-19. 17 [1980] AC 952 at p.998. 18 At p.1008. 19 [1980] 1 All ER 529. 20 c.7. 21 Section 13(1) as amended by the 1976 Act.

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Understanding Statutes

in whom the control of the trade union is vested honestly believe that to do so may assist it, albeit in a minor way, in achieving its objectives in the dispute. My Lords, at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British Constitution, though largely unwritten, is firmly based on the separation of powers: Parliament makes the laws, the judiciary interpret them …. The role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous, it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations, there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our Constitution it is Parliament’s opinion on these matters that is paramount …. It is at least possible that Parliament when the [present] … Act was passed, did not anticipate that so widespread and crippling use as has in fact occurred would be made of sympathetic withdrawals of labour and of secondary blacking and picketing in support of sectional interests able to exercise ‘industrial muscle’. But if this be the case it is for Parliament, not for the judiciary, to decide whether any changes should be made to the law as stated in the Act.

Lord Keith of Kinkel said22 that, Perusal of the judgments in the Court of Appeal makes it clear that their conclusion was strongly influenced by consideration of the injustice involved, in their view, in subjecting to serious economic loss, inconvenience and distress, employers and workers in the private sector of the steel industry who had no concern at all with the dispute … and also of the disastrous economic consequences to the country as a whole of the action taken by the defendants. Such considerations cannot properly distract the Court from its duty of faithfully interpreting a statutory provision according to its true intent, notwithstanding that events have shown the provision to be capable of being relied on to enable privileged persons to bring about disastrous consequences with legal impunity. There is nothing in the apparent policy of the Act … which might warrant a restrictive interpretation. … Indeed, that policy seems to have been to enlarge, not abridge, the privileges by way of immunity conferred on trade unions .… If these privileges should prove to have been exercised with insufficient sense of responsibility, to the serious detriment of the national interest, then it is for the force of public opinion to seek their curtailment through the democratic processes available to it. The considerations for and against such curtailment can be properly and definitely __________________________________________________________________________________________________________________________________________

22 At p.550.

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debated only in Parliament. It is no part of the function of a Court of law to form conclusions about the merits of the issue. The one public interest which courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commanded by the judicial system. Involvement in political controversy … is calculated to damage that interest. In the interpretation of statutes the courts must faithfully endeavour to give effect to the expressed intention of Parliament as gathered from the language used and the apparent policy of the enactment under consideration.

Lord Edmund-Davis said that,23 a judge’s sworn duty to “do right by all manner of people after the laws and usages of this realm” sometimes puts him in difficulty, for certain of those laws and usages may be repugnant to him. When that situation arises, he may meet it in one of two ways. First, where the law appears clear, he can shrug his shoulders, bow to what he regards as the inevitable, and apply it. If he has moral, intellectual, social or other twinges in doing so, he can always invoke Viscount Simonds, Lord Chancellor, who once said24: “For to me heterodoxy or, as some might say, heresy, is not the more attractive because it is dignified by the name of reform. Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty, which is to administer justice according to law, the law which is established for us by Act of Parliament or the binding authority of precedent.” Alternatively, a judge may be bold and deliberately set out to make new law if he thinks the existing legal situation unsatisfactory. But he risks trouble if he goes about it too blatantly, and if the law has been declared in statutory form it may prove too much for him, dislike it though he may.

Lord Scarman said25 that, below the surface of the legal argument lurk some profound questions as to the proper relationship in our society between the courts, the government and Parliament …. My basic criticism of all three judgments in the Court of Appeal is that in their desire to do justice the Court failed to do justice according to law …. In our society the judges have in some aspects of their work a discretionary power to do justice so wide that they may be regarded as lawmakers … i.e. the Common Law and equity …. The judges, even in this, their very own field of creative endeavour, have accepted, in the interests of certainty, the self-denying ordinance of stare decisis, the doctrine of binding precedent; and no doubt this judicially imposed limitation on judicial lawmaking has helped to maintain confidence in the certainty and evenhandedness of the law.

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23 At pp.547-8. 24 Scruttons v. Midland Silicones Ltd. [1962] AC 466 at 467. 25 At pp.550-551.

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But in the field of statute law the judge must be obedient to the will of Parliament as expressed in its enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. But our law requires the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment. If the result be unjust but inevitable, the judge may say so and invite Parliament to reconsider its provision. But he must not deny the statute. Unpalatable statute law may not be disregarded or rejected, merely because it is unpalatable. Only if a just result can be achieved without violating the legislative purpose of the statute may the judge select the construction which best suits his idea of what justice requires. The Constitution’s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament came to think that the judicial power is to be confined by nothing other than the judge’s sense of what is right, or, as Selden put it, by the length of the Chancellor’s foot, confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today.

However, in the other Commonwealth countries the hands of the courts are not tied. They can, and do, declare an Act of Parliament as being unconstitutional and therefore illegal. This arises from the fact that most Commonwealth countries operate under a written constitution. Not all of the provisions of the constitution are justicable, but fundamentally the constitution creates authorities and vests certain powers in these authorities. It gives certain rights to persons as well as to bodies of persons. It imposes obligations in much the same say as it confers privileges and powers. The duties, obligations, powers, privileges and rights specified in a constitution must be exercised in accordance with the letter – and the spirit – of the constitution. As Chief Justice John Marshall in Marbury v. Madison26 stated, To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

A written constitution thus lays down certain mechanics of enactment which a Parliament under that constitution must obey. The constitution establishes the fundamental maxims by which the authorities it creates must guide their conduct. It thus controls alike those who govern and those who are governed. It

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26 1 Cranch 137, 2 L Ed. 60 (1803).

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sets the standard by which the duties are measured, the obligations, the powers, the privileges and the rights it has conferred, or imposed. In the United States, the failure to observe the form of the enacting formula led to Acts of the state Legislature being declared invalid. The cases are Joiner v. State27 and State e rel Gouge v. Burrow, City Recorder.28 In the Joiner case, an amendment by the state Legislature did not contain the enacting formula. A question then arose whether the omission invalidated the purported amendment. The Supreme Court held that the amendment ‘is a nullity and of no force and effect as law’, and continued: The purpose of an enacting clause is to establish the Act; to give it permanence, uniformity and certainty; to afford evidence of its legislative statutory nature, and to secure uniformity of identification and thus prevent inadvertence, possible mistake, and fraud.

In the Burrow’s case, the enacting formula omitted the words ‘the state of’. The Constitution of the State provided that, ... the style of the Laws of this State shall be, “Be it enacted by the General Assembly of the state of Tennessee ….”

The Supreme Court of the State was emphatic: The provision we are here called upon to construe is in plain and unambiguous words. The meaning of it is clear and indisputable, and no ground for construction can be found. The language is: “The style of the law of the State shall be, …”. The word “shall”, as here used, is equivalent to “must”. We know of no case in which a provision of the constitution thus expressed has been held to be directory. We think this one clearly mandatory, and must be complied with by the Legislature in all legislation important and unimportant, enacted by it; otherwise it will be invalid.

In Sri Lanka also, article 75 of the Constitution of the Democratic Socialist Republic confers on Parliament the power to make laws, having retrospective effect and repealing or amending any provision of the Constitution or adding any provision to the Constitution.

However, in the exercise of this legislative power Parliament is bound by the Constitution: the courts can declare statutes as not being valid on the ground that they are unconstitutional. An interesting illustration is the case of Liyanage v. R29, in which the appellants were charged with participation in an abortive coup d’état. By the Criminal Law (Special Provisions) Act 1962,30 __________________________________________________________________________________________________________________________________________

27 Supreme Court of Georgia, 1969 223 Ga. 367, 155 SE 208. 28 Supreme Court of Tennessee, 1907 119 Tenn. 376, 104 SW526. 29 [1967] 1 AC 259 P C See also Ibralebe v. R [1964] AC 900. 30 No.1 of 1962.

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the Legislature sought to validate retroactively the prolonged imprisonment without trial of the appellants; to create, ex post facto, a new criminal offence so as to cover the situation of the abortive coup d’état; to alter the law of evidence so as to render admissible much that otherwise would be inadmissible and to prescribe a minimum penalty. All those provisions were limited in their effect to the appellants and to the circumstances of the coup d’état. By another Act, a special tribunal nominated by the Chief Justice was constituted to try the case. The Privy Council declared the legislation to be invalid because it infringed the doctrine of separation of powers, which was a part of the Constitution of Sri Lanka. In contrast, the 1983 Constitution of the Republic of South Africa states specifically that, no court of law shall be competent to enquire into or to pronounce upon the validity of any Act passed by Parliament.31

Thus, where it is established that an Act of Parliament has been enrolled in the office of the Registrar of the Supreme Court, a copy of the Act is ‘conclusive evidence as to the provisions of every such law’.32 So, in effect, under the 1983 Constitution the Supreme Court cannot enquire into the merits of an Act of Parliament. But because the Constitution lays down certain conditions for the observance and guidance of those concerned, the Supreme Court could declare an Act of Parliament as invalid where the procedure specified by the Constitution is not observed. For, by s.34(2), the Supreme Court shall be competent to enquire into and pronounce upon the question as to whether the provisions of [the Constitution] were complied with in connection with any law which is expressed to be enacted by the State President and any House.

Obsolete Acts of Parliament We have found that the courts cannot declare an Act of Parliament as being invalid. But can they declare an Act to be obsolete? The answer is a simple one – no. The doctrine of abrogation of a statute by disuse does not arise. A statutory provision which forms part of the law, however dormant it may be considered to be by lack of use, is still part of the law. Many Commonwealth countries inherited the rules of the common law, the doctrines of equity and the statutes of general application as it stood in England at the time the Crown __________________________________________________________________________________________________________________________________________

31 This provision reenacts s.59(2) of the 1961 Constitution. The 1961 Constitution repeated a similar provision in the South Africa Act, 1909. 32 Section 35, 1983 Constitution; s.65, 1961 Constitution.

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took over the administration of the territory concerned.33 Those laws became the basic law for the territory. Indeed, s.135 of the South Africa Act 1909,34 provided that, all laws in force in the several Colonies at the establishment of the Union shall continue in force in the respective provinces until repealed or amended by Parliament, or by the provincial councils in matters in respect of which the power to make ordinances is reserved or delegated to them. All legal commissions in the several Colonies at the establishment of the Union shall continue as if the Union had not been established.

Also, Article 3 of the 1969 Ghana Constitution provided that the Common Law of Ghana comprise the rules of law generally known as the common law, the rules generally known as the doctrines of equity and the rules of the customary law …35 [and the existing law as comprising the written and unwritten law as they existed before the commencement of the Constitution, and that] … the operation of the existing law after the coming into force of [the] Constitution shall not be affected by [that] commencement … [and] the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of [the] Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by [the] Constitution.

The position, then, is this: that unless the enactment is expressly repealed either by way of Statute Law Revision or otherwise, the enactment, to borrow a phrase from Sir James Stephen,36 ‘obviously exists only because it is forgotten’.

The Whole Act In a debate in Parliament,37 Sir Roundell Palmer said that, Nothing is better settled than that a statute is to be expounded, not according to the letter, but according to the meaning and spirit of it. What is within the true meaning and spirit of the statute is as much law as what is within the very letter of it, and that which is not within the meaning and spirit, though it seems to be within the letter, is not the law, and is not the statute. That effect __________________________________________________________________________________________________________________________________________

33 In Lesotho, Sri Lanka, Zimbabwe and Swaziland it was the Roman Dutch Law. 34 9 Edw. 7 Ch.9. 35 The provision has been repeated in all the subsequent Constitutions of Ghana. 36 Digest of Criminal Law p.xxxi. 37 209 Hansard Parl. Deb. (3rd Series) 685.

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should be given to the object, spirit, and meaning of a statute is a rule of legal construction, but the object, spirit, and meaning must be collected from the words used in the statute. It must be such an intention as the legislature has used fit words to express.

This statement has been accepted as the basis for the rule of construction based upon the four corners of the Act – ex visceribus actus. In the Lincoln College Case,38 Coke said that, The office of a good expositor of an Act of Parliament is to make construction on all parts together, and not of one part only by itself – for no one can rightly understand any part without perusing the whole again and again.

However, in Warburton v. Loveland39 the House of Lords stated that, No rule of construction can require, that when the words of one part of a statute convey a clear meaning according to their strict grammatical construction, a meaning which best advances the remedy, and suppresses the mischief, aimed at by the legislature, it shall be necessary to introduce another part of the statute which speaks with less perspicuity, and of which the words may be capable of such construction, as by possibility to diminish the efficacy of the other provisions of the Act.

It is thus well settled that in construing an Act of Parliament a court of law (a)

will not be astute to find out ways in which to defeat the object of the Act40;

(b)

will not look only at the language of the preamble or of any particular section, but at the language of the whole Act41;

(c)

will look at the context, the collocation and the objects of the words relating to the matter in hand in order to interpret the meaning of the words according to what would appear to be the meaning intended to be conveyed by the use of the words42;

(d)

will not admit the principle that abstract justice would require or justify a departure from the established rule of construction43;

(e)

will not, in the treatment of two consecutive subsections in an Act, isolate one from the other and give effect to each without regard to the other unless it is absolutely necessary.44

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38 (1595) 3 Co. Rep. 586. 39 (1832) 2 Dow & Cl 480 at p.500; 5 ER 499 at p.510. 40 Smith’s Case (In re London Marine Insurance Association) (1869) LR 4 Ch. App. 611 at p.614. 41 Bywater v. Brandling (1828) 7 B & C 643 at p.660. 42 Rein v. Lane (1867) LR 2 QB 144 at p.151. 43 Ex p. St. Sepulchre’s (1864) 33 L J Ch.372 at p.375. 44 [1955] Ch.730.

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Casus omissus An act of Parliament may be badly drafted. That may result in an omission of certain matters in the Act, or even of a word or words. It may be the fault of the Parliamentary Counsel who drafted the Bill for the Act, or the result of an amendment in Parliament, but whatever the source of the omission, effect must be given to the Act. In those circumstances the ‘intention of the legislature, however obvious it may be, must, no doubt, in the construction of statutes, be defeated where the language it has chosen compels to that result, but only where it compels to it’.45 In that case, s.83 of the West India Docks Act 1831,46 provided that, all lighters and craft entering into the said docks, basins, locks or cuts to discharge or receive ballast or goods to or from on board of any ship or vessel lying therein shall be exempt from the payment of any rates so long as such lighter or craft shall be bona fide engaged in discharging or receiving such ballast or goods as aforesaid, and also all such ballast or goods so discharged or received shall be exempt from any rate or charge whatever.

Thus, when, due to lack of space, a lighter with goods which had entered the docks was compelled to leave the docks without discharging its cargo, the House of Lords held that the lighter was liable as it was not being engaged in discharging or receiving cargo. Lord Loreburn contended that it would be making the law rather than interpreting the law to hold the lighter exempt. The rationale, then, is that in cases where a material particular is not provided for in express terms there is a casus omissus. The courts will refuse to apply the statute where the words do not compel the courts to supply the omission. This is in consonance with the basic principle that the function of the court is to interpret the law and not to legislate. Thus, in R v. Wimbledon Justices ex p. Derwent,47 Lord Goddard said that, Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if the statute has created a specific offence, it is not for the court to find other offences which do not appear in the statute.

In the result, the courts would not extend a statute to meet a case for which no express provision has been made. It is instructive, however, to visit the arguments of Lord Denning, and Lord Simonds’ strictures on him, in Magor and St Mellons RDC v. Newport __________________________________________________________________________________________________________________________________________

45 London and India Docks Co. v. Thames Steam Tug and Lighterage Co. Ltd. [1909] AC at p.23. 46 1 & 2 Will. 4, c.52. 47 [1953] 1 QB 380.

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Corporation,48 and the apparent approval by the Law Commission of the approach adopted by Lord Denning.49

The Problems of the Binding Authority of Precedent The doctrine of stare decisis is a doctrine of policy, intended to ensure the certainty of established principles of law. When legal principles are established and understood, it is not wise to unsettle that which is established and when rights have accrued, it is wise – and consistent with justice – to recognise them. But consistency is a virtue only when facts remain consistent. Thus in the interests of justice, it may be necessary to vindicate the obvious principles of the law and remedy an injustice. In the words of Oliver Wendell Holmes, the law is always approaching and never reaching consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.50

Simply put, the doctrine of stare decisis means that a solemn decision of a court of competent jurisdiction, made after arguments on questions of law and necessary to the determination of a case, becomes an authority – a binding authority – in the court that made the decision and on all courts of lower jurisdiction. That decision becomes an example to be followed where the facts and legal principles of the same hue arise in other cases. Similarity, however, is not identity. Stare decisis does not seek to control – its importance lies in the guidance that it affords. It is a tool which has differential effects and differential values. Like all tools, it may be bad, blundering or blunt. Its application must be apposite with justice and its use compatible with common sense. Blind adherence to precedent is fatal to the development of the law. The facts of one case may be distinguished from another set of facts in another case. The principles of law established may be of general application. It is always desirable to distinguish between the general principle laid down by a case – that is, the ratio decidendi – and the decision by itself. In Bourne v. Keane,51 Lord Birkenhead LC said: If there were, in fact, an unbroken line of authorities dating back 300 years, then it would have been a matter of grave discussion whether this House, in accordance with well recognised principles, would consent to break that chain. __________________________________________________________________________________________________________________________________________

48 [1952] AC 189 at p.191. 49 See pp.49-51. 50 The Common Law, p.36. 51 [1919] AC 815 at p.857.

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In that case, Lord Buckmaster enunciated the principles for stare decisis: Firstly, the construction of a statute of doubtful meaning once laid down and accepted for a long period of time ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience. Secondly, that the decisions upon which the title to property depends or which by established principles of construction otherwise form the basis of contracts ought to receive the same protection. Thirdly, decisions affecting the general conduct of affairs, so that their alteration would mean that taxes had been unlawfully imposed or exemption unlawfully obtained, payments needlessly made or the position of the public materially affected ought in the same way to continue.52

However, in West Ham Union v. Edmonton Union,53 Lord Loreburn LC said that, Great importance is to be attached to old authorities on the strength of which many transactions may have been adjusted and rights determined. But where they are plainly wrong, and especially where the subsequent course of judicial decisions has disclosed weakness in the reasoning on which they were based, and that practical injustice is the consequence that must flow from them, I consider it is the duty of this House to overrule them.

The ratio decidendi The legal reasoning behind a decision is the basis of the doctrine of stare decisis. The reasoning must be clear in its statement, concise on its formulation, free from an ambiguity. It is thus desirable to heed the advice of Oliver Wendell Holmes:54 Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bind.

If an example were needed to support Holmes, Liversidge v. Anderson55 may be called in aid. In that case the issue was the meaning to be given to the words, ‘has reasonable cause to believe’, in regulation 18B of the Defence (General) Regulations, 1939. The regulation provided that,

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52 Ibid, at p.874. 53 [1908] AC 1 at p.4. 54 Northern Securities Co. v. United States, (1904) 193 US 197 at p.400. 55 [1942] AC 206.

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if the Secretary of State has reasonable cause to believe any person to be of hostile origin or association and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained.

The case involved a consideration of whether the Secretary of State was bound to establish the reasonableness of his belief or whether his declaration that he had that belief was legally sufficient. The test then was whether a subjective or objective approach was required in the construction of the provision. To Lord Macmillan, and to the majority of the Law Lords, it is for the Secretary of State alone to decide in the forum of his conscience whether he has a reasonable cause of belief, and he cannot, if he has acted in good faith, be called on to disclose to anyone the facts and circumstances which have induced his belief or to satisfy anyone but himself that those facts and circumstances constituted a reasonable cause of belief.56

Lord Macmillan thus opted for the subjective approach. This approach ignored Lord Shaw’s convincing dissent in R v. Halliday,57 in which the principles of liberty of the subject were forcibly asserted and an impressive warning was uttered concerning the extensions of executive action.58

Lord Atkin, however, favoured the objective approach. He showed, by reference to no less than twelve examples of cases, that the objective approach was the correct one; the one which the courts, and the House of Lords itself, had adopted in a good number of cases. In a famous passage Lord Atkin observed that the judges should always be ‘alert to see that any coercive action is justified in law’.59 His stand was vindicated in Nakkuda Ali v. Jayaratne,60 where Lord Radcliffe observed that, It would be an unfortunate thing if Liversidge v. Anderson came to be regarded as laying down any general rule.

Obiter dictum There is a distinction between the legal reasoning upon which the decision in a case is based – the ratio decidendi – and things said by the way in the course of a judgment or even in argument – obiter dicta. Obiter dicta are not necessarily essential to the determination of the case in hand, but give an indication as to the way a judge’s mind was working. To Bowen LJ, obiter dicta, __________________________________________________________________________________________________________________________________________

56 Ibid, at p.248. 57 [1917] AC 260 at p.285. 58 CK Allen, Law and Orders 3rd ed., p.44. 59 Liversidge v. Anderson [1942] AC 206 at p.244. 60 [1951] AC 66 at p.76.

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like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the Judges who have uttered them, and are a great source of embarrassment in future cases.61

And Lord Esher MR in Ex p. Cox62 did not think that a judge would wish any statement which he may have made in the course of a case, merely obiter and casually, to be treated as necessarily being an authority on the subject in question; but when a judge has thought it necessary for the purpose of a case to make a deliberate examination of the practice of his court and to state such practice, I do not think the authority of such statement can be got rid of merely by arguing that it was not really necessary for the actual decision of the case. I think that such a statement if cited as an authority is entitled to great weight, though of course not binding on us as a decision.

Therein lies the value of an obiter dictum – it is of persuasive authority, a pointer to progress. On the other hand, a ratio decidendi is a principle, the authoritative principle of a decision in a case, the abstract principle deduced from the material facts as established by the judge, the abstract principle which attains the force of law. Judges need not necessarily accede to the authority of a case, however strong the decision may be. It they are not convinced, they should not be overcome.63 Judges are wise enough to appreciate their fallibility as human beings. Ready to learn, they are great enough to discard mere pride of opinion, follow truth wherever it leads, and acknowledge their errors. That is the test of the very best men who are called upon to determine the fortunes of their fellow human beings.

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61 Cooke v. New River Co. (1888) 38 Ch D 56 at p.71. 62 (1887) 20 QBD 1 at p.19. 63 See Mearing v. Hellings (1845) 14 M. & W. 711 at p.712.

Chapter 3 Interpretation by Parliament

Interpretation is a journey of discovery. It is the process of ascertaining the meaning of an Act of Parliament or of a provision of an Act. It is referred to as doctrinal interpretation when what is involved is the attempt to get at the meaning of a word or words, an expression or perhaps a whole sentence. In that case, doctrinal interpretation is often referred to as grammatical interpretation – that is, an interpretation based on what is called the ‘intention of Parliament’. When interpretation is based on the ‘intention of Parliament’ it is described as logical. Logical interpretation is of two kinds: extensive and restrictive. Extensive (or liberal) interpretation stretches the meaning of a word or an expression to cover its obvious meaning. It may also be referred to as remedial interpretation when ‘judges … bring in everything they can within the maximum scope of the language used’. It adopts a very comprehensive approach towards the interpretation. Restrictive interpretation avoids giving the full meaning to the word or expression in order to confine the meaning to the ‘intention of Parliament’. It is often referred to as literal (as opposed to liberal) interpretation.

The Interpretation section An Act of Parliament may have a section or a provision which defines certain words or expressions as used in the Act, a practice that started in earnest with Lord Brougham’s Interpretation Act 1850.1 Statutory definition is an example of what is called authentic interpretation. Here a court of law is obliged to follow the definition given in the Act. For example, where a provision of an Act states that, “animal” means a cat or a dog,

there is an authentic interpretation. The word animal cannot be interpreted to include, say, a goat. The definition given here is also an example of a restrictive interpretation. Animal has a wider meaning. Cats and dogs are not the only animals on earth. Such a definition is used in order to avoid the repetition of the words cat and dog. Where an interpretation section provides that, __________________________________________________________________________________________________________________________________________

1

13 & 14 Vict. c.21. The first use of an interpretation section appears to be s.115 of An Act for the Regulation of Customs, 1825, 6 Geo. 4, c.107.

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“animal” includes a cat, a dog, a goat, a sheep and any other animal,

the question then arises whether the words any other animal will be interpreted by reference to domestic animals or by reference to four-footed animals. The category of animals specifically mentioned are all domestic animals. They are all of them also four-footed animals. It could also be argued that the dictionary meaning of the word animal is what is intended, because of the use of the word includes. Next to authentic interpretation, we have customary interpretation. Judicial precedent plays a part here, since what we are dealing with are situations where a succession of decisions of the courts have dealt with the same subjectmatter. It is an aspect of judge-made law. Indeed, the rules of interpretation and construction dealt with in Chapter Four are based on customary interpretation. In other words, customary interpretation is distinguished from authentic interpretation in the sense that authentic interpretation, as we have seen, is prescribed by Parliament.

The Interpretation Act An Interpretation Act lays down the basic rules as to how the courts should interpret the provisions of an Act of Parliament. It also defines certain words or expressions so that there is no unnecessary repetition of the definition of those words in other Acts. In other words, an Interpretation Act provides a standard set of definitions or extended definitions of words and expressions commonly used in legislation (and is thus an Act of wide application). It also provides a set of rules which regulate certain aspects of the operation of other enactments. This means that an Interpretation Act is not all a question of definitions. There are other provisions which are not merely definitions or rules of construction but substantive rules of law, such as the provisions relating to the effect of the repeal of an Act. Judicial decisions have also given their blessing to the application of such provisions of the Interpretation Act. It should be emphasised, however, that an Interpretation Act does not supply all the answers only some of them. It helps to simplify the law by avoiding repetition and promoting consistency in the use of language. It clarifies, to an extent, the rules of construction. Interpretation Acts have a long history. Lord Brougham’s Act was2 AN ACT for consolidating enactments relating to the Construction of Acts of Parliament and for further shortening the language used in Acts of Parliament.

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2

The Interpretation Act, 1850, 13 & 14 Vict. c.21.

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69

It provided (by s.2) for the use of the full stop in an Act of Parliament.3 The 1850 Act stayed its course until it was repealed by the Interpretation Act 1889.4 The 1889 Act became the mother of the many Interpretation Acts one reads about in all Commonwealth countries. It was repealed by the Interpretation Act 1978.5 It is also important to note a few considerations: (a) quite a number of the provisions of an Interpretation Act are presumptive. In other words, the rules and principles stated in the Interpretation Act do not apply where a particular Act provides differently or the context otherwise requires. It means that a definition in an Interpretation Act may not be of an assistance to the court. For example, a definition which states that, “banker” includes a body of persons whether incorporated or not carrying on the business of banking does not help much, since the court still has to ascertain the meaning it should give to the expression, ‘the business of banking’. It is like defining an archdeacon as a person who performs archidiaconal functions; (b) a definition may, itself, be so lengthy that it would require interpretation by the courts. The South Africa Terrorism Act 1967,6 dealt with later, affords an example of a definition which is not only lengthy but complicated; (c) a definition in an interpretation section will not be declared void on the ground that it is uncertain or that it is vague. (d) what does the expression ‘the intention of Parliament’ mean?

The definition of terrorism in the Terrorism Act 1967 of South Africa is complicated. Perhaps this was intentional – one must bear in mind the conditions of South Africa at the time, and the type of government that brought about that legislation. Nor should one forget how the minority government and its supporters at the time perceived the conditions in the country. The essential features of the offence lay in three basic categories of facts. A person commits the offence of terrorism where (a) that person, with intent to endanger the maintenance of law and order in the Republic, (i) does an act, whether in the Republic or outside the Republic, or

__________________________________________________________________________________________________________________________________________

3

This may well be the reason for earlier Parliamentary Counsel composing legislative sentences of enormous lengths.

4

52 & 53 Vict. c.63.

5

C.30.

6

No.83 of 1967.

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(ii) attempts to do that act, or (iii)incites or advises the commission of the act, or (iv)conspires with others to bring about the doing of that act;7 (b) that person undergoes a course of training, whether in the Republic or outside the Republic, which training would be of use to a person intending to endanger the maintenance of law and order, or attempts or consents to undergo that training or incites or advises any other person to undertake that training;8 (c)

that person possesses any explosives, ammunition, firearm or weapon.9

Once it is established that a person falls within paragraph (a), that person is presumed to have intended to endanger the maintenance of law and order, where the act or acts complained of had, or were likely to have had, certain results. The provision does not admit of any proof beyond reasonable doubt that the acts were not intended to have any of those results. Where the conduct complained of is established to fall within paragraph (b), the person concerned is conclusively guilty by reason of the training undertaken, attempted or instigated. A person in this category will not be convicted where that person proves beyond reasonable doubt that certain results were not intended by the act or acts established. As regards paragraph (c), a person must establish beyond reasonable doubt that there was no intention to use the explosive, ammunition, firearm or weapon to achieve certain results. The certain results referred to, the contrary to each of which an accused must prove, are: (a) to hamper or to deter any person from assisting in the maintenance of law and order; (b) to promote, by intimidation, the achievement of an object; (c) to cause or promote general dislocation, disturbance or disorder; (d) to cripple or prejudice an industry or an undertaking or industries or undertakings generally or the production or distribution of commodities or foodstuffs at any place; (e) to cause, encourage or further an insurrection or forcible resistance to the Government or the Administration of the territory;

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7

Section 2(1)(a).

8

Section 2(1)(b).

9

Section 2(1)(c).

Interpretation by Parliament

71

(f) to further or encourage the achievement of a political aim, including the bringing about of a social or an economic change, by violence or forcible means or by the intervention of or in accordance with the direction or under the guidance of or in co-operation with or with the assistance of a foreign government or a foreign or an international body or institution; (g) to cause serious bodily injury to or endanger the safety of a person; (h) to cause substantial financial loss to a person or the state; (i) to cause, encourage or further feelings of hostility between the White and other inhabitants of the Republic; (j) to damage, destroy, endanger, interrupt, render useless or unserviceable or put out of action the supply or distribution at a place of light, power, fuel, foodstuffs or water, or of sanitary, medical, fire extinguishing, postal, telephone or telegraph services or installations, or radio transmitting, broadcasting or receiving services or installations; (k) to obstruct or endanger the free movement of any traffic on land, at sea or in the air; (l) to embarrass the administration of the affairs of the State.10

The scope of this work does not permit of further detailed analysis and elucidation of the offence of terrorism under the South Africa Act. It is sufficient to add that mens rea does not appear to have a place in the operation of the law of terrorism in South Africa.11 On the other hand, s.45 of the Charities Act 1960,12 states that charity means any institution, corporate or not, which is established for charitable purposes and is subject to the control of the High Court in the exercise of the Court’s jurisdiction with respect to charities.

This is a definition in circles: ‘What is an archdeacon’? ‘An archdeacon is a person who performs archidiaconal functions.’ What are ‘archidiaconal functions’? Archidiaconal functions are functions performed by an archdeacon! So where do we go from here? Perhaps the Preamble to the Charitable Uses Act 160113 may be called in aid. The 1601 Act was repealed by the Mortmain and Charitable Uses Act 1891.14 The 1891 Act was in its __________________________________________________________________________________________________________________________________________

10 Section 2(2) of the Act. 11 The South Africa Terrorism Act, 1967, No.83 of 1967, was repealed, with the exception of section 7, by the Internal Security Act, 1982, No.74 of 1982. The Internal Security and Intimidation Amendment Act, 1991, No.138 of 1991, eventually repealed s.7 of the Terrorism Act, 1967. The 1991 Act made several amendments to the 1982 Act by way of repeals and substitutions. 12 8 & 9 Eliz. 2 c.58. 13 43 Eliz. c.4. 14 Section 13(1).

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Understanding Statutes

turn repealed by s.38 of the Charities Act 1960. However, the Preamble to the 1601 Act is still a useful guide to an understanding of the meaning of the word charity.15 That takes us back to the 1601 Act. Case law, in this respect, is still reliable. In Commissioner for the Special Purposes of Income Tax v. Pemsel,16 Lord Macnaghten laid down the classification by which a particular trust could be considered as being a charitable trust: Charity in its legal sense comprises four principal divisions: trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.17

Thus, legislation and case law – labyrinthine though the case law may be – combine to give a reasonable answer to the question, ‘What is a charity?’ As Lord Macnaghten said in the Pemsel case, If a gentleman of education, without legal training, were asked what is the meaning of a “trust for charitable purposes”, I think he would most probably reply, “That sounds like a legal phrase. You had better ask a lawyer.” 18

However much we may claim to have buried the Common Law – because legislation has ousted its application – it is very much alive in this respect. It refuses to be buried because it is the very foundation of the law. What the expression ‘the intention of Parliament’ means in the present context is that the statutory definition as given in the particular Act should prevail. But what if adhering to the statutory definition gives rise to difficulties? These difficulties are normally solved by reliance on the rule that an Interpretation Act does not apply where there is a contrary intention. Usually an Interpretation Act would provide that unless a contrary intention appears, [the Act] applies to every enactment ….

An Act is read as a whole. It cannot be interpreted in order to reduce it to absurdity. The courts will thus give a meaning to an expression so that the Act is not reduced to a nullity.19 In R v. Vasey and Lally20 the court re-arranged the language of an amendment so as to make sense and carry out the object of the amendment. The test is an objective one.

__________________________________________________________________________________________________________________________________________

15 See McGovern v. Attorney-General [1982] Ch.321 and Incorporated Council of Law Reporting for England and Wales v. Attorney-General [1972] Ch.73. 16 [1891] AC 531. 17 At p.583. 18 At p.584. 19 Salmon v. Duncombe (1886) 11 AC 627. 20 [1905] 2 KB 748.

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The Dictionary In construing an Act of Parliament, the dictionary is of little assistance. To begin with, a dictionary usually gives more than one meaning to a word or an expression and divorces the word entirely from its context. A properly composed sentence is the expression of an idea. In Re Bidie,21 Lord Green said that, The first thing one has to do … in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes … is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: “In this statute, in this context, relating to the subject-matter, what is the true meaning of that word?” In the present case…the learned [Judge] attributed too much force to … the abstract or unconditioned meaning of the word “representation”. No doubt, in certain contexts, “representation” would be sufficient to cover not merely probate and not merely letters of administration with the will annexed, but administration simpliciter. The real question … is: What does the word mean in the context in which we find it here, both in the immediate context of the subsection in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?

Words in the abstract do not have a meaning. They ‘cannot be read in isolation; their colour and their content are derived from their context’.22 As Lord Wright MR23 pointed out with respect to the word free, It is now convenient to examine the actual language of the Constitution so far as relevant, in order to ascertain its true construction. The first question is what is meant by “absolutely free” in s.92. It may be that the word “absolutely” adds nothing. The trade is either free or it is not free. “Absolutely” may perhaps be regarded as merely inserted to add emphasis. The expression “absolutely free” is generally described as popular or rhetorical. On the other hand, “absolutely” may have been added with the object of excluding the risk of partial or veiled infringements. In any case, the use of the language involves the fallacy that a word completely general and undefined is most effective. A good draftsman would realise that the mere generality of the word must compel limitation in its interpretation. “Free” in itself is vague and indeterminate. It must take its colour from the context. __________________________________________________________________________________________________________________________________________

21 [1948] 2 All ER 995 at p.998. 22 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.461. 23 James v. Commonwealth of Australia [1936] AC 578 at pp.627-628.

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Compare, for instance, its use in free speech, free love, free dinner and free trade. Free speech does not mean free speech; it means speech hedged in by all the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law … Free love, on the contrary, means licence or libertinage, though, even so, there are limitations based on public decency and so forth. Free dinner generally means free of expense, and sometimes a meal open to any one who comes, subject, however, to his condition or behaviour not being objectionable. Free trade means, in ordinary parlance, freedom from tariffs. “Free” in s.92 cannot be limited to freedom in the last mentioned sense. There may at first sight appear to be some plausibility in that idea, because of the starting-point in time specified in the section, because of the sections which surround s.92, and because the proviso to s.92 relates to customs duties. But it is clear that much more is included in the term …. Nor does “free” necessarily connote absence of discrimination between interstate and intra-state trade. No doubt conditions restrictive of freedom of trade among the States will frequently involve discrimination; but that is not essential or decisive …. Then there is the conception … that “free” means free from every sort of impediment or control by any organ of Government, legislative or executive to which s.92 is addressed with respect to trade, commerce or intercourse ….’

That the courts resort to the dictionary is illustrated by Cozens-Hardy MR when he said that, in interpreting statutes, the courts may no doubt assist themselves in the discharge of their duty by any literary help which they can find, including of course the consultation of standard authors and references to well-known and authoritative dictionaries, which refer to the sources in which the interpretation which they give to the words may be found.24

Swifen Eady LJ in the same case stated that: It is the duty of the court to construe a statute according to the ordinary meaning of the words used, necessarily referring to dictionaries or other literature for the sake of informing itself as to the meaning of any words, but any evidence on the question is wholly inadmissible.

Subsequent Acts of Parliament The courts credit Parliament with a profound knowledge of the Common Law and of the existing law. Thus, in Ex p. Copeland,25 Knight-Bruce LJ said, on a __________________________________________________________________________________________________________________________________________

24 Camden v. Inland Revenue Commissioners [1914] 1 KB 641 at p.648. 25 (1852) 22 LJ Bank 17 at p.21.

Interpretation by Parliament

75

question of construction arising ‘upon a subsequent statute on the same branch of the law’ [that] ‘it is perfectly legitimate to use the former Act, though repealed.’ He quoted the authority of Lord Mansfield: Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explanatory of each other.26

However, the basis of such an interpretation must be that the statutes are in pari materia, that is to say, (a) they are on the same branch of the law;27 (b) there are references to each other;28 (c) they relate to one subject-matter;29 (d) they are Consolidation Acts;30 (e) they are to be read with another Act or Acts;31 (f) the language used represents an adoption of an authoritative interpretation, whether by judicial decision or by a long course of practice, of an earlier Act or Acts;32 (g) the words used in an earlier Act are used in a subsequent Act.33

Where, though, there is a departure in a subsequent Act from the language used in an earlier Act relating to the same subject, there is the presumption that ‘the alteration in the language used in the subsequent statute was intentional’.34 Lord Campbell CJ put it differently in Wray v. Ellis35: There can be little use in referring to cases where a similar question has arisen on Acts differently framed, for they only illustrate the general principle, which is not in dispute.36

When, said Cockburn CJ, __________________________________________________________________________________________________________________________________________

26 R v. Loxdale (1758) 1 Burr. 445 at p.447. 27 Ex p. Copeland (1852) 22 LJ Bank 17. 28 R v. Loxdale (1758) 1 Burr 445. 29 Crosley v. Arkwright (1788) 2 TR 603. 30 Mitchell v. Simpson (1890) 25 QBD 183; Smith v. Baker [1891] AC 325; R v. Riley [1896] 1 QB.309. 31 Canadian Southern Ry v. International Bridge Co. (1833) 8 App. Cas. 723; Mather v. Brown (1876) 1 CPD 596. 32 D’Emdem v. Pedder (1904) 1 CLR 91; Barlow v. Teal (1885) 5 QBD 403. 33 Lennon v. Gibson & Howes Ltd. [1919] AC 709. 34 Dickerson v. Fletcher (1873) LR 9 CP 1 at p.8. 35 (1859) 1 E & E 276 at p.288. 36 See also Re McGreavey [1950] 1 All ER 442 at p.446.

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Understanding Statutes

the legislature, in legislating in pari materia and substituting certain provisions for those which existed in an earlier statute, has entirely changed the language of the enactment, it must be taken to have done so with some intention and motive.37

In Casement v. Fulton,38 the Judicial Committee of the Privy Council said that, it is certainly to be wished that, in framing statutes, the same words should always be employed in the same sense.

Yet there have been instances where the language of an Act has been altered without the intention that the meaning thereby should change. Thus in R v. Buttle39 it was held that, although the words in s.7 of the Corrupt Practices and Elections Act 186340 were different from the words of s.8 of the Corrupt Practices and Elections Act 1852,41 the words of the later s.7 should be preferred to the wording of the earlier s.8. Said Kelly CB: I think it was not the intention of the legislature that a witness should be compelled to answer under pain of imprisonment and should then be exposed to an indictment for some perjury committed on another occasion and that his answers before the commissioners should be used in evidence at the trial of that indictment. This would be subversive of the principle of the Common Law.

We have seen that a decision on an earlier Act, or a provision thereof, can be used in determining the meaning to be given to any part of a subsequent Act. In the same manner, a word or a provision of a subsequent Act can be taken into consideration in construing an earlier one.42 However, it is not unknown for an Act to be passed for the sole and express purpose of explaining, or removing doubts in, an earlier Act. Such an Act is often referred to as an ‘Act of explanation’. In Butler and Baker,43 Lord Coke said that an Act of explanation should not be construed by any strained sense against the letter of the previous Act, for if any exposition should be made against the direct letter of the exposition made by Parliament there would be no end of expounding.

There have also been times when Parliament has enacted legislation purely declaratory of common or existing law. These are legislative declarations or parliamentary expositions. But, says Craies44: __________________________________________________________________________________________________________________________________________

37 R v. Price (1897) LR 6 QB 411 at p.416. 38 (1845) 5 Moore PC 130 at p.141. 39 (1870) LR 1 CCR 248. 40 26 & 27 Vict. c.29. 41 15 & 16 Vict. c.57. 42 Morgan v. London General Omnibus Co. (1883) 12 QBD 201. 43 (1591) 3 Co. Rep 25a. 44 Craies on Statute Law, 7th ed., p.147

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Except as a parliamentary exposition, subsequent Acts are not to be relied on as an aid to the construction of prior unambiguous Acts. A later statute may not be referred to to interpret the clear terms of an earlier Act which the later Act does not amend, even although both Acts are to be construed as one, unless the later Act expressly interprets the earlier Act: but if the earlier Act is ambiguous, the later Act may throw light on it, as where a particular construction of the earlier Act will render the later incorporated Act ineffectual.

The Republic of South Africa (Second Amendment) Act 198145 affords an interesting example of an Act of explanation. Section 114 of the Constitution Act 196146 provided that a prior petition by a province of the Union was required before the Parliament of South Africa could alter the boundaries of a province. Without any application for such a petition, parts of some of the provinces were excised to form the so-called independent States of Transkei, Bophuthatswana, Venda and Ciskei. The 1981 Act made it clear that s.114 had applied only to the alteration of the boundaries of a province for the benefit of another province.47 The Minister responsible for the Bill told the South African Parliament that, in the light of the momentum which the attainment of independence by national states had gained and in view of the possible misconstruction of the provisions of s.114 … as implying that all the changes in boundaries of provinces must be preceded by petitions from the provincial councils concerned, it is proposed … that s.114 be amended with retrospective effect48 to put the intention of the legislature regarding the provisions of that section beyond all doubt.49

In Kantor v. MacIntyre,50 the Rhodesia Federal Supreme Court stated that: It may happen that a later Act, by assuming that earlier cognate piece of legislation has a particular meaning, throws light on what Parliament originally intended. The use in this manner of later legislation to clear up ambiguity or obscurity in earlier legislation has the approval of the House of Lords.51 But it is a method of construction which must … be applied with very great caution. If a statute is capable of two meanings and one is more probable than the other, then the more probable meaning would presumably be adopted by the courts in any event. If a later statute is involved to support __________________________________________________________________________________________________________________________________________

45 No.101. 46 No.32. 47 My emphasis. 48 From 31 May 1961. 49 Cockram, The Interpretation of Statutes, p.32. 50 1958 (1) SA 45 at p.48. 51 Ormond Investment Co. v. Betts [1928] AC 143 at p.156.

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Understanding Statutes

the less probable meaning, it comes dangerously near to making the later statute retroactive and might have serious effects upon people who, before it was passed, had, in good faith, acted upon the alternative construction.

Parliament as a Court Parliament is that arm of government that is concerned with legislation, the financial arrangements of the government and the representation of the people. In the United Kingdom, it is also the highest court of appeal. We are not here concerned with the penal jurisdiction of Parliament, nor with breaches of privilege and contempt, but with the right of Parliament to interpret its own legislation. After the compilation of the Corpus Juris, Justinian forbade all commentaries upon it and said that he would settle all questions of doubt. Parliament at Westminster must have seized upon his approach, since in the thirteenth and fourteenth centuries the common lawyers and the Judges maintained that they were the only proper authorities to interpret statutes. There is the celebrated case in which Hengham CJ reproved counsel: ‘Do not gloss the statute; we understand it better than you do, for we made it.’52 Indeed, Edward 1 published an extra-judicial ‘exposition’ of the Statute of Gloucester in 1278, and in 1281 the King-in-Council made a correction to it. In Assessor for Aberdeen v. Collie,53 Lord Sands said that, The House of Lords is an infallible interpreter of the law. A batsman who … had been struck on the shoulder by a ball remonstrated against a ruling of l.b.w; but the wicket-keeper met his protest by the remark: “it disna’ maitter if the ba’ hit yer ned; if the umpire says yer oot, yer oot”, Accordingly, if the House of Lords says, “this is the proper interpretation of the statute”, then it is the proper interpretation. The House of Lords has a perfect legal mind. Learned Lords may come or go, but the House of Lords never makes a mistake.

Craies54 also, relying on Dicey, has stated that, Parliament has power to declare by statute the common law or the meaning of any prior statute, and may declare wrong or repeal any judicial legislation effected by interpretation of statutes, and may make declaratory or repealing enactments retrospective.

But until Parliament is driven to exercise the power of interpretation of its own legislation, the interpretation of statutes is the special preserve of the __________________________________________________________________________________________________________________________________________

52 Quoted by Megarry, Miscellany-at-Law, p.356. The Judges were then usually summoned to attend Parliament. 53 1932 SC 304 at p.311. 54 Craies on Statute Law, 7th ed., pp.13-14.

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Judiciary. That power is never exercised suo moto, but in the course of legal proceedings – except, perhaps, in respect of practice directions. In Le Neve v. Le Neve,55 the courts of equity attempted to water down the effect of a statutory provision which made the registration of a registrable instrument a condition for gaining precedence over a prior unregistered registrable instrument. By the Yorkshire Registries Act 1884,56 Parliament did not hesitate to frustrate that judicial attempt.57 This case shows that Parliament can react to judicial innovation in interpreting statutes. Courts can circumvent a statutory requirement; the doctrine of part-performance is a vivid illustration of this. The doctrine has its own intrinsic mechanism to prevent abuse. It has been confined within limits which are designed to promote the object of the legislation (which can be flouted by its application).58 Hence the claim that the doctrine of partperformance is ‘a partial substitute for the statutory safeguard of signed writing.’59 The doctrine has stood the test of time, as can be seen from a reading of s.40(2) of the Law of Property Act 1925. Yet Parliament, with the enactment of s.2 of the Law of Property (Miscellaneous Provisions) Act 1989,60 has shown its dislike of attempts by the courts ‘to strain the law’. That provision requires that contracts for the sale or other disposition of an interest in land should be made in writing. It has the effect of making void, not merely unenforcable, contracts affecting an interest in land which are merely verbal. In Rahimtoola v. Nizam of Hyderabad,61 Lord Denning – fresh to the House of Lords – ‘provoked a strong rebuke’ from Lord Simonds LC and the other Law Lords (Lords Reid, Cohen, Morton and Tucker). In a dissenting judgment, Lord Denning had argued that a sovereign state could not plead immunity from suit in England if the transaction in question was a commercial __________________________________________________________________________________________________________________________________________

55 (1747) Amb 436 at p.445. 56 47 & 48 Vict. c.54. 57 The substance of s.14 of the 1884 Act is now found in s.199 of the Law of Property Act, 1925. This provides that, ‘A purchaser shall not be prejudicially affected by notice of (i) any instrument or matter capable of registration under the Land Charges Act, 1925, ... which is void or not enforceable as against him under that Act or enactment by reason of non-registration thereof.’ See also Re Monolithic Building Co. [1915] 1 Ch.643. 58 The doctrine of part-performance, as the term implies, relies, among other things, on acts performed in part which acts are unequivocally referable to a contract affecting an interest in land. But the acts must be consistent with the facts of the alleged contract: Maddison v. Alderson (1883) 8 App. Cas. 467; Kingswood Estate v. Anderson [1963] 1 QB 169. As Lord Selborne LC observed in Maddison v. Alderson, the requirement was imposed ‘to prevent a recurrence of the mischief which the statute was passed to suppress’ p.478. 59 Megarry and Wade, Law of Real Property, 5th ed. pp.784-785. See also Wade, Covenants - A Broad and Reasonable View, 1972 BCLJ 157. 60 C.34. 61 [1958] AC 359.

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Understanding Statutes

one. Whatever the strength of the House of Lords in that case, Lord Denning’s dissentient view has been vindicated in the State Immunity Act 197862 – Parliament has stepped in to over-rule the House of Lords. Jones v. Wrotham Park Settled Estates63 is also a case which led to an amendment to the Leasehold Reform Act 1967,64 by s.118 of the Housing Act 1974.65 The game of ping-pong between Parliament and the Judiciary which is likely to result in a situation like this is well captured by Lord Morton of Henryton in Chapman v. Chapman66: If the court had power to approve, and did approve, schemes such as the present scheme, the way would be open for a most undignified game of chess between the Chancery Division and the legislature. The alteration of one settlement for the purpose of avoiding taxation already imposed might well be followed by scores of successful applications for a similar purpose by beneficiaries under other settlements. The legislature might then counter this move by imposing fresh taxation upon the settlements as thus altered. The beneficiaries would then troop back to the Chancery Division …. So the game might go on, if the judges of the Chancery Division had power which the appellant claims for them, and if they thought it right to make the first move.

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62 C.33. 63 [1979] 2 WLR 132. 64 Ch.88. 65 C.44. 66 [1954] AC 429 at p.468.

Chapter 4 The General Rules of Interpretation

General The General Rules of interpretation of statutes appear to have taken root from the principles laid down in Heydon’s Case.1 In that case, the Barons of the Exchequer laid down the rule, That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1) What was the common law before the making of the Act? (2) What was the mischief and defect for which the common law did not provide? (3) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth (4) The true reason of the remedy. And then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico.

That was the beginning of what is now often referred to as the purpose approach or the Mischief Rule. Thus in the construction of an Act of Parliament, it is important to consider the mischief that led to the passing of the Act and then give effect to the remedy as stated by the Act in order to achieve its object. This has its drawbacks: the language of the statute may have inadequately expressed the objective intended to be achieved. This brought in the second rule of interpretation, the Literal Rule, laid down in the Sussex Peerage Case.2 This rule stated that, The only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver. But if any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Dyer,3 is “a key to open the __________________________________________________________________________________________________________________________________________

1

(1584) 3 Co. Rep. 7a; 76 ER 637.

2

(1844) 11 Cl. & F. 85; 8 ER 1034 at p.1057.

3

Stowel v. Lord Zouch, Plowden, 369.

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Understanding Statutes

minds of the makers of the Act, and the mischiefs which they intend to redress”.

This means that only the words of the statute count; if they are clear by themselves then effect must be given to them. This rule also has its drawbacks: it disregards consequences and the object of the statute may be considered only if there is doubt. It should be noted, however, that the object of a statute and the circumstances that led to its enactment are always relevant – not just in cases of doubt. The next development came with Grey v. Pearson.4 The rule enunciated in that case came to be known as the ‘golden rule’: a court could construe a statute by departing from the literal meaning of the words if to do would avoid consequences which are absurd. It stated that, In construing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further.

The Mischief Rule The Rule laid down by the Exchequer in Heydon’s Case5 assists a court which is trying to find out why the Act was enacted in order to give substance to a word or words in the Act. The question asked is: ‘what was wrong that necessitated the enactment of the Act?’ In other words, what is the object of the Act, what is it intended to achieve, what are the consequences that follow from its enactment? Here, not only the language, but the circumstances surrounding the enactment, are involved; the spirit rather than the letter of the law becomes important. The judges of the sixteenth century were immersed in common law and perceived legislation as, at best, a gloss, or at worst, an intrusion upon it. They thus construed legislation simply by assessing to what extent it added to, subtracted from, supplemented or complemented the existing canon of judgemade law. Hence the four questions in Heydon’s Case6: (a) What was the common law before the enactment of the Act? (b) What was the mischief and defect for which the common law did not provide a remedy or redress? __________________________________________________________________________________________________________________________________________

4

(1857) 6 H. LC 61; 10 ER 1216.

5

(1854) 3 Co. Rep. 7a; 76 ER 637.

6

(1884) 3 Co. Rep. 7a; 76 ER 637.

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(c) What is the remedy now provided by the Act of Parliament to deal with the mischief or defect for which the common law did not provide a cure? (d) What is the rationale for the remedy as discerned from the preamble to the Act or by the Act itself?

Having answered these questions a judge then had the duty to construe the Act so as to (a) suppress the mischief; (b) advance the remedy; (c) suppress anything that would lead to the continuance of the mischief; and (d) advance the cure and the remedy according to the true intent of the makers of the Act for the public benefit.

This really meant that the judges, in applying the Mischief Rule, did what they could with the words of the statute in order to deal effectively with the mischief or defect as they found it. As Corry7 put it, ‘In the fourteenth century, when the judges were members of the great council and framed the statutes as well as voted upon their adoption, they could retort to counsel who pressed a particular interpretation, “Do not gloss the statute. We know better than you for we made it.”8 No theory of interpretation was needed. After Parliament got the right to frame bills as well as petition for removal of grievances, and after the judges had ceased to sit as members of the upper house, the gap between Parliament and the judges was bridged by equitable interpretation. That doctrine drew a distinction between the sense or spirit of a statute and its words,9 and justified the judges in extending or restricting the operation of the letter.10 In so taking liberties with the text of the statute, they were always guided by “the intent of the Legislature which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances”.11 The work of government was integrated under the Crown, and the first duty of the judges was to make the statute realise its purposes. This is clearly shown in Heydon’s Case,12 which laid down four rules for the interpretation of all statutes. Its resounding language celebrates the unity of purpose which, in theory at any rate, animated the legislature and the judges under the leadership of the Crown.

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7

‘Administrative Law and the Interpretation of Statutes’ (1936) 1 UTLJ 286.

8

Anon., YB 33 & 34 Edw. 1, 82.

9

Eyston v. Studd (1574), 2 Plowden 459 at p.464. 10 Hill v. Grange (1557), 1 Plowden 164 at p.178 11 Stradling v. Morgan (1560), 1 Plowden 201 at p.205. 12 (1584) 3 Co. Rep 7b.

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Nearer our times, Lord Reid in Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG,13 has stated that, It has always been said to be important to consider the “mischief” which the Act was apparently intended to remedy. The word “mischief” is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which parliament can properly be supposed to have intended to remedy by the Act. There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law farther than was necessary to remedy the “mischief”. Of course it may and quite often does go farther. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for. The mischief which this Act was intended to remedy may have been common knowledge 40 years ago. I do not think it is today. But it so happens that a committee including many eminent and highly skilled members made a full investigation of the matter and reported some months before the Act was passed …. I think that we can take this report as accurately stating the “mischief” and the law as it was then understood to be, and therefore we are fully entitled to look at those parts of the report which deal with those matters.

The Black-Clawson Case appears to be the modern approach to the Mischief Rule. (It will be remembered that under that rule the courts will consider the mischief aimed at by the Act, and the remedy provided for it. In order to discern the mischief the courts will look at the preamble, dealing with the reason behind the law in addition to the words of the Act.) This led to what became known as the equitable construction of an Act of Parliament in which the intent of the Act prevailed over its words. The spirit, not the letter, of the law was what was important. In Stowell v. Lord Zouch,14 it was stated that, everything which is within the intent of the makers of the Act, although it be not within the letter, is as strongly within the Act as that which is within the letter and the intent also.

The modern approach to the Mischief Rule still considers the spirit of the Act, but the spirit is not used to ‘change’ or dominate the letter of the law. The spirit or object of an Act is used to determine the meaning of the words used in it. In Fothergill v. Monarch Airlines,15 the Court of Appeal in dealing with __________________________________________________________________________________________________________________________________________

13 [1975] 1 All ER 810 at p.84. 14 (1569) 1 Plowden 353; 75 ER 536. 15 [1981] AC 251 at p.272.

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article 26 of the Warsaw Convention ‘for the Unification of certain Rules relating to International Carriage by Air’, observed, per Lord Wilberforce: I start by considering the purpose of article 26, and I do not think that in doing so I am infringing any “golden rule”. Consideration of the purpose of an enactment is always a legitimate part of the process of interpretation, and if it is usual – and indeed correct – to look first for a clear meaning of the words used, it is certain, in the present case, both on a first look at the relevant text, and from the judgments in the court below, that no “golden rule” meaning can be ascribed.

The Literal Rule It has been shown in Chapter One16 that the primary meaning of a word changes with its context. That is a caution that must be taken into account when dealing with the application of the Literal Rule of interpretation or construction. The Rule stipulates that in interpreting or construing an Act of Parliament, if the words ‘are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense’,17 Yet words in themselves, not in the abstract, do not have a meaning. A dictionary definition merely gives us a history of the word; how over the years it has been used in various contexts with respect to various subject-matters. Thus the sentence structure determines the meaning that is intended to be conveyed, bearing in mind the idea that is intended to be expressed.18 In Re Bidie,19 Lord Greene said that, The first thing one has to do … in construing words in a section of an Act of Parliament is not to take those words in vacuo, so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural meaning in the sense that they must be so read that their meaning is entirely independent of their context. The method of construing statutes that I prefer is not to take particular words and attribute to them a sort of prima facie meaning which you may have to displace or modify. It is to read the statute as a whole and ask oneself the question: “In this statute, in this context, relating to this subject-matter, what is the true meaning of that word?”…. No doubt, in certain contexts, “representation” would be sufficient to cover not merely probate and not merely letters of administration with the will annexed, but administration simpliciter. The real question which we have to decide is: what does the word mean in the context __________________________________________________________________________________________________________________________________________

16 Language p.6 et seq.;Words p.25 et seq. 17 Sussex Peerage Case (1844) 11 Cl & F. 85; 8 ER 1034. 18 See James v. Commonwealth of Australia [1936] AC 578 at pp.627-628. 19 [1948] 2 All ER 995 at p.998.

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in which we find it here, both in the immediate content of the subsection in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy?

The Literal Rule is clearly an advance on the Mischief Rule. In a sense the Literal Rule is a reaction to the Mischief Rule. The latter rule could be considered as judicial legislation. The Literal Rule as expounded by the Sussex Peerage Case,20 rejected the notion that in the interpretation of an Act of Parliament a judge could go outside the Act. Where a doubt arises as to the words used in the Act, the object of the Act may be resorted to in a case where there is clearly a choice presented by the language of the Act,21 or where the meaning is not plain. Simply put, the Literal Rule stipulates that only the words of the Act count, but where there is an ambiguity in the sense that the words used are not precise a judge could consider the object of the Act. Modern cases tend to give the impression that the two approaches of the Mischief Rule and the Literal Rule are being merged into one subsumed under the literal rule. As Lord Reid put it in Attorney-General for Northern Ireland v. Gallagher,22 We can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge, but we can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which we may think was probably intended but which cannot be inferred from the words of the Act.

The Golden Rule The Golden Rule, as stated in Grey v. Pearson,23 means no more than that the meaning of the words of the Act may be modified in order to avoid repugnance, inconsistency or absurdity. In Caledonian Railway v. North British Railway,24 Lord Blackburn expressed agreement with the Golden Rule but added – and that is the crux of the matter – that the Rule does not help much because the cases in which there is a real difficulty are those in which there is a controversy as to what the grammatical and ordinary sense of the words used with reference to the subject-matter is. To one mind it may appear that the __________________________________________________________________________________________________________________________________________

20 (1844) 11 Cl & F., 85; 8 ER 1034. 21 Ellerman Lines v. Murray [1931] AC 126. 22 [1963] AC 349 at p.366. 23 (1857) 6 H LC 61; 10 ER 1216. 24 (1881) 6 App. Cas. 114.

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most that can be said is that the sense may be what is contended by the other side, and that the inconsistency and repugnancy is very great, that you should make a great stretch to avoid such absurdity, and that what is required to avoid it is a very little stretch or none at all. To another mind it may appear that the words are perfectly clear – that they can bear no other meaning at all, and that to substitute any other meaning would be not to interpret the words used, but to make an instrument for the parties – and that the supposed inconsistency or repugnancy is perhaps a hardship – a thing which perhaps it would have been better to have avoided, but which we have no power to deal with.

This, in effect, supports George Bernard Shaw’s statement that the only golden rule is that there are no golden rules.25 In The Duke of Buccleuch,26 Lord Lindley said that, You are not so to construe the Act of Parliament as to reduce it to rank absurdity. You are not to attribute to general language used by the Legislature in this case, any more than in any other case, a meaning which would not carry out its object, but produce consequences which, to the ordinary intelligence, are absurd. You must give it such a meaning as will carry out its objects.

In Gartside v. IRC,27 Lord Reid said that, It is always proper to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent, and in the light of the reasonableness of the consequences which follow from giving it a particular construction.

All these authorities raise one fundamental problem: what is the test to be applied? In River Wear Commissioners v. Anderson,28 Lord Blackburn stated: We are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the court that the intention could not have been to use them in their ordinary signification, and to justify the court in putting on them some other signification, though less proper, is one which the court thinks the words will bear.29

That, then, is the test. The departure from the grammatical or ordinary sense of the words must of necessity relate to the Act read as a whole, and to a consideration of the objective or scheme of the Act. The test deals with the words used and not with the consequences of the application of the words. If __________________________________________________________________________________________________________________________________________

25 Man and Superman III. 26 (1889) 15 PD 86 at p.96. 27 [1968] AC 553, at p.612. 28 (1877) 2 AC 743 at pp.764-765. 29 This is a repetition of what Lord Blackburn stated in Allgood v. Blake (1873), LR 8 Ex. 160. He merely substituted the word statute for the word will.

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the meaning of the words are clear, the consequences of their application are immaterial. This is illustrated by the words of Lord Reid in Westminster Bank Ltd. v. Zang30: no principle of interpretation of statutes is more firmly settled than the rule that the court must deduce the intention of Parliament from the words used in the Act. If those words are in any way ambiguous – if they are reasonably capable of more than one meaning – or if the provision in question is contradicted by or is incompatible with any other provision in the Act, then the court may depart from the natural meaning of the words in question. But beyond that we cannot go.

Yet it is difficult to dissociate the words of an Act from the application of it. For what purposes was the Act enacted if one can draw a distinctive line between the words and their application? Thus to understand an Act within the principle of the Golden Rule, a few considerations are pertinent: (a) whatever may be the reading as to what is meant by the words of an Act, that reading cannot be a justification for so construing the words concerned so as to escape the plain meaning31; (b) it is desirable, always, to have a second look at the words actually used in the Act32; (c) where the ambiguity, obscurity or inconsistency could not be resolved by an objective standard, then a subjective standard can be employed in order to avoid unreasonable consequences33; (d) consequences may legitimately be taken into consideration where there is a choice between two reasonable interpretations.34

The Golden Rule, in its modern application is summed up by Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island35: In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.

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30 [1965] AC 182 at p.222. 31 Duport Steel Ltd. v. Sirs [1980] 1 All ER 529. 32 Hartnell v. Minister of Housing and Local Government [1965] AC 1134 at p.1157. 33 Richards v. McBride (1881) 8 QBD 119; Fry v. Inland Revenue Commissioners [1959] 1. Ch. 86. 34 Gartside v. Inland Revenue Commissioners [1968] AC 553 at p.612; Fry v. Inland Revenue commissioners [1959] 1 Ch.86 at p.105. 35 [1921] AC 384 at p.387.

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The Intention of Parliament A statute has been defined as ‘the will of the legislature’.36 The function of a court of competent jurisdiction in relation to an Act of Parliament is, according to Coke, to interpret that Act ‘according to the intent of them that made it.’37 This statement of Coke has, to a great extent, down the ages, influenced the judges in the interpretation of an Act of Parliament. The judges have always maintained that it is their function to give expression to the intention of Parliament.38 And in Warburton v. Loveland,39 it was stated that, Where the language of an Act is clear and explicit, we must give effect to it. Whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.

In SE Railway v. Railway Commissioners,40 Cockburn, CJ thought that where the meaning of an Act was doubtful the judges were at liberty to refer to the circumstances under which the Act was passed into law as a means of solving the difficulty. Lord Reid41 has stated that there was room for exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other.42 There is the eighteenth century view43 that the sense and meaning of an Act of Parliament must be collected from what it says when passed into law, ‘and not from the history of changes it underwent in the House where it took its rise’. An Act of Parliament does not take its ‘rise’ from Parliament, but from the promoters of the Bill. Can what happened during the progress of a Bill in Parliament really be a guide to the interpretation of a provision of the Act? Parliamentary debates, at best, reflect the political, social and economic forces behind the Bill. They may indicate how the other side would want to deal with the same matter had it the power to do so. However, both the Government and the Opposition seek to satisfy the demands of their respective political parties during debates; and they also show how members of Parliament clear their consciences when the general election may not be far away. Therefore would ‘examining the proceedings in Parliament almost certainly settle the matter’? If ‘the circumstances under which it passed into law’ mean the objects and purposes of the Act, then there is room for taking that into account. The Act was not enacted for the sake of its details but to __________________________________________________________________________________________________________________________________________

36 Maxwell on Interpretation of Statutes 11th ed., p.1. 37 Coke, 4 Institutes, 330. 38 Sussex Peerage Claim (1884) 11 Cl & F 85 per Tindal CJ. 39 (1832) 2 Dow & Cl 480 at p.489. 40 (1880) 2 QBD 217, 226. 41 Beswick v. Beswick [1968] AC 88. 42 And now Pepper v. Hart [1993] 1 All ER 42. 43 Millar v. Taylor (1769) 4 Burr 2303, at p.2332.

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achieve a purpose. Thus, when it is stated that the meaning must be collected from what the Act says, attention, it is submitted, must be directed towards the problems that gave rise to its introduction into Parliament in the form of a Bill. And since we could not, before Pepper v. Hart,44 take into consideration what Parliament said during the passage of a Bill in Parliament, is it proper to talk of the intention of Parliament? What, in fact, is the ‘intention of Parliament’? Is it a myth encouraged by the doctrine of separation of powers? Is it a mere dogma, fundamental though it may be considered to be in the study of the science of government? Except in a very limited sense, for example, the recommendations of a Parliamentary Committee, Parliament never had an intention to introduce legislation. In the great majority of cases, the government of the day introduces legislation. According to de Smith,45 a very large majority of Government bills introduced into Parliament by Ministers are passed into law substantially in their original form.

Gerald Kaufman46 has also demonstrated how ineffective Parliament is – through its committee system, where the real work of legislating should be done – to put its intention into legislation brought by the Executive. Has Pepper v. Hart47 cleared the way for us to abandon the deceptions of political or constitutional theory and of mythology and acknowledge that the judges, in interpreting an Act of Parliament, seek to find solutions to the problems that arise within society – social problems posed by social questions? We may argue till the end of time whether or not judges make law; whether or not they usurp the functions of Parliament through the process of the interpretation of an Act of Parliament; whether or not their judgments are based upon principle or policy. We shall, at the end of the day, come to appreciate that the facts that lead to the interpretation of a piece of legislation were not – or may not have been – in the contemplation of those who promoted that legislation, nor of those who drafted or enacted it. Legislation is introduced to deal with situations that have arisen. There is then the hope that those situations will not occur in the future since the law has provided a solution to those situations. What happens is that when other situations arise in the future we seek to bring them within the ambit of what has been provided for, and the judges do their best to relate the law to the facts of the situation that has now arisen in order to reflect the conscience of society as a whole.48 __________________________________________________________________________________________________________________________________________

44 [1993] 1 All ER 42. 45 Constitutional and Administrative Law 5th ed. p.247. 46 The Listener, 29 March, 1984. Paul Meredity in the Introduction to his article ‘Legislation: Educational Reform’ refers to the ‘elective dictatorship’ of Parliament: Modern Law Review, Vol.52, pp.215-216. 47 [1993] 1 All ER 42. 48 This will depend to a great extent on the view of interpretation adopted.

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Although a piece of legislation deals with the past, it also speaks to the future in the hope that a problem dealt with would not occur again. If it does occur again there is legislation to deal with it. Legislation is thus but a reflection of social progress in any given society. Was Coke really referring to Parliament as we know it today in his use of the celebrated phrase, ‘according to the intent of them that made it’? How effective was Parliament in the sixteenth and seventeenth centuries? Parliament in Coke’s day was, in essence, the Sovereign. Legislation in those centuries was not only drafted by the judges but voted on by them as well. There is that celebrated remark, ‘Do not gloss the statute. We know better than you for we made it.’49 So surely, when Coke refers to the ‘intent of them that made it’ he was referring to the ‘lions under the throne’. Experience has taught us that Parliament has no mind. And if Parliament has no mind, how can it have an intention? Nor can we talk of ‘the collective intention of members of Parliament’. Instead, perhaps, it may be more realistic to accept the Act as printed as being the product of the whole legislative process, and to give due weight to anything found in the printed Act …. If we take these matters into consideration, then we are in effect searching for the intention of the draftsman rather than the intention of Parliament. And then it becomes very relevant to ask – could any competent draftsman have adopted this form of drafting if he had intended the result for which the appellant contends? If the answer is no, then there is such real doubt that it must be resolved in favour of the accused.50

Why then does the use of the phrase continue? It may well be the influence of Coke as already stated, or of Locke and Montesquieu. Locke51 taught us that men have certain inalienable rights, rights that were beyond the reach of any government; life, liberty and the pursuit of happiness.52 This theory of the natural rights of man influenced the doctrine held by the judges that certain laws regarding life, liberty and property, were so fundamental that they should be placed beyond the reach of Parliament. Holt CJ said that, If an act give away the property of a subject it ought not to be countenanced.53

No judge in the United Kingdom today would say such a thing!

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49 Year Book 33 & 34. Ed. 1, 82. 50 Lord Reid in Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10. 51 Second Treatise of Government ss.6, 24-27, 135. 52 This found expression in the Constitution of the United States. 53 Callady v. Pilkinton (1707) 12 Mod. 573.

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Montesquieu54 taught us that liberty is sustained by the doctrine of the separation of powers. This the judges interpreted to mean that they did not make the law, they only apply it; it is the legislature that makes the law. One effect of the 1688 Revolution55 was to cut the royal prerogative to the bone;56 the King’s wish was no longer a command and Hobbes’ sovereign had vanished. Governmental action had to be justified by the laws and that meant Parliament became the new sovereign, representative of the will of the people – if such a will there is. Blackstone stated that, if Parliament will positively enact a thing to be done which is unreasonable, I know of no power in the ordinary forms of the constitution that is vested with authority to control it.57

Perhaps we may now consider another phrase: the legislative intent, that is, the object and purpose of the legislation. Would it not be better to talk of the intention of the promoters of the Bill which became the Act of Parliament, that is to say, of the policy behind the law? The promoters, whether they be lobbyists, individuals or a political party, are the source of what we now call the intention of Parliament. Is it pertinent to realise that what the judges do in interpretation is to restore certainty for the uncertainties of meaning in a particular provision of an Act of Parliament in the light of social conditions58 and not to divine the intention of Parliament? Modern parliamentary practice and procedure have shown that what Parliament does in relation to an Act of Parliament, is to give its stamp of approval, as the Legislative arm of government, to an intention conceived, nurtured and brought forth by others. They that intended the law may not necessarily be members of Parliament. A building inspector who approves a house as being fit for human habitation is not the architect of that house. Still less can he claim to be the person who built the house. Similarly, of the majority who vote in favour of

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54 L’Esprit de Lois. 55 The ‘Glorious Revolution’ established the sovereignty of Parliament, though it can be said that, that Parliament represented 10% of the male population. That Parliament placed power securely in the Whig Oligarchy. It ruled Britain until the nineteenth century, by which time the power of the Whigs was on the decline. 56 In the Case of Proclamations (1611) 13. 12 Co. Rep. 74, the judges asserted their right to determine the limits of the prerogative. And since the 1688 Revolution the Crown has not contested that claim of the judges. See also R. v. Lewes JJ., Home Secretary [1973] AC 388 (HL). 57 Commentaries 1766 Vol. 1 at p.91. 58 Much though will depend on the Judge’s philosophy of interpretation.

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the passing of a Bill, it would be wrong to assert that they had a common intention regarding the details, whether minor or of major importance, of the detailed provisions of the Bill. The votes of the majority are but an indication of the success of the Government whips. In civil law countries the reports of those who codified the law are used as sources of interpretation of ambiguous provisions of extant codes. The Memorandum to a Bill does, also, under our system, supply useful information regarding the intention of Parliamentary Counsel and of the promoters of a Bill. The function of a Memorandum to a Bill is to give sufficient background information to set ‘in perspective and in context the facts and problems which the legislative proposal is intended to meet’. It also indicates the principal objects of the legislation, the means by which the objectives of the legislation are intended to be achieved, as well as the known implications and difficulties, whether legal, social or administrative. Equally, a Memorandum to a Bill is intended to assist members of Parliament in understanding the Bill. The English courts, however, do not, as a rule, refer to the Memorandum to a Bill as an aid to interpretation. No doubt such a Memorandum, especially in the case of a Bill of considerable importance, would contain very useful information as to the intention of Parliamentary Counsel and of the promoters of the Bill. Equally, the courts do not countenance explanatory notes issued by departmental officials for the guidance of their officers for the purpose of construing an Act promoted by the Ministry. It could be argued that there is the danger here that a court may be unduly influenced by official opinion. But would it? Can not the court make up its own mind in the process of which it may derive assistance from such an explanatory note? It would be realistic in the process of interpretation to consider, if need be, what the promoters wanted to achieve. If we are reluctant to appreciate this simple truth, the problem which brought the solution in the form of a provision of an Act of Parliament is side-tracked and semantics govern the day. Heydon’s Case59 must still have some relevance if we consider not only ‘the mischief and defect for which the common law did not provide’ but also the problems and defects for which the law was conceived, nurtured and presented to Parliament as a Bill. Then the office of all the Judges is always to make such construction as shall [solve the problems which have arisen, and advance the solution to the problems] and to suppress subtle inventions and evasions [which do not accord with the objects and purposes of the Act] and to add force and life to the cure and remedy according to the objects and purposes of the Act, [the demands of society and the dictates of common sense and justice].60 __________________________________________________________________________________________________________________________________________

59 3 Co. Rep. 7a. 60 The italics and the words in the square brackets are mine.

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This approach, it is submitted, is the one taken in Smith v. Hughes.61 In that case the words ‘in a street’ used in subsection (1) of s.1 of the Street Offences Act 1959,62 were construed to bring within the ambit of the Act prostitutes who attracted the attention of passers-by from balconies or windows. Lord Parker63 stated that for his part he approached the matter by considering what is the mischief aimed at by the Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes.64

Would it be wrong for a court of competent jurisdiction, when faced with a problem of interpretation of an enactment, to look at the legislative history of the enactment? The traditional view is that judges seek to divine the intention of the legislature, but surely the real question should be ‘did the legislature fail to provide the apparently missing pieces or did those responsible for introducing the Bill – the policy makers, departmental officials and parliamentary counsel – all simply fail to anticipate the situation that has arisen?’ In 1958 Lord Denning65 said: We do not refer to legislative history as they do in America, we do not look at the explanatory memoranda which preface Bills before Parliament.

But in 1964 he said: It is legitimate to look at the report of a Committee leading to legislation so as to see what was the mischief at which the Act was directed; but you cannot look at what the Committee recommended or at least if you do look at it, you should not be unduly influenced by it.66

No doubt it is now recognised that the report of a Committee, and for that matter of a Commission of Inquiry,67 both explains and delimits the mischief at which the Act was directed. __________________________________________________________________________________________________________________________________________

61 62 63 64

[1960] 1 WLR 830. 7 & 8 Eliz 2 c.57. Ibid at p.832. See also R v. Males (1962) 2 QB 500. In Lower v. Sorrell [1963] 1 QB Omerod LJ, at p.968 adopted an interpretation that would have the effect of defeating the purpose of the Agricultural Holdings Act, 1948. 65 Escoigne Properties Ltd. v. IRC [1958] AC 549 (HL). 66 Letang v. Cooper [1964] 1 QB 53. Lord Denning’s approach to interpretation has not been free from criticism even by the House of Lords. See Magor and St. Mellons RDC v. Newport Corporation [1952] AC 189. 67 Ghana has a provision in its Interpretation Act 1960 which allows the Courts to look at the report of a Commission of Inquiry in these matters. Australia has a similar provision. But Sir Noel Hutton considers that ‘a Government report in particular is not a reliable basis for the interpretation of subsequent legislation. Very often the Act is deliberately not intended to reflect what the original report said, and this is just a method of making things worse’. Professionalising Legislative Drafting Ed. Reed Dickerson. See, however, Duke v. GER Reliance Ltd. [1988] 1 All ER 626 and Lord Templeman’s dictum at p.634; and Pickstone v. Freemans plc [1988] 2 All ER 803.

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It should be noted also that an increasing number of Acts of Parliament gives discretionary powers to Ministers – in effect, to departmental officials – to issue Regulations. In some cases there are no guidelines. In respect of expressions such as The Minister may by order make Regulations for the purposes of this Act,

what is the Minister to prescribe? The Local Government Finance Act 198867a gives power in almost every sentence to the Secretary of State to make Regulations. Those Regulations are intended to deal with exemptions, penalties, the enforcement of payments and appeals. When a provision of a Regulation under that Act comes up for interpretation, can we sincerely talk of the intention of Parliament? There are the procedures of negative and affirmative resolutions to give Parliament effective control of delegated legislation. What is the practice? How effective is the Standing Committee on Delegated Legislation? Does it not suffer the fate of all other Committees of Parliament? In order to be able to talk about ‘the intention of Parliament’, perhaps we need another Committee on Ministers’ Powers68 to review the recommendations of the 1932 Committee, to investigate how far the 1932 recommendations have worked in the light of the domination in Parliament of the political party that forms the government, and how far we can move away from the mechanical consideration of legislation in Parliament to a system which will allow Parliament a real influence as the legislative arm of government. Even granting the argument in favour of the intention of Parliament, if Parliament did not see or foresee the injustice in what it has provided, why should not judges, who see it when dealing with the lives and fortunes of fellow human beings, in the name of Justice rectify the error? If those who promoted the legislation did not see or foresee the injustice that had arisen, not in their proposals but in the way the proposals had become law, why should that not be corrected outside the chamber? How would that undermine the sovereignty of Parliament? Which is the higher principle – Justice or dogma? Of all those who have anything to do with a piece of legislation called in question, it is only the judges who have sworn to do justice. Members of Parliament do not swear to do justice between the individual and the state, between one individual and the other. Whichever philosophy of interpretation is adopted, should Justice not be pursued in the interpretation of a piece of legislation? Should we crucify Justice at the altar of a myth (turned into a principle of government) that judges do not and should not make the law? It is submitted that in the interpretation of an Act of Parliament the question should be ‘which construction would best advance the cause and course of justice?’ and not ‘what has Parliament intended?’ Justice is worth pursuing for Her own sake. _________________________________________________________________________________________________________________________________________

67a C.41.

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When litigants go to court they are not interested in any of the fine arguments we make about the separation of powers, about the intention of Parliament – they have faith that justice will be done. That faith should be a living faith not a meaningless one. The advice of Christ regarding an ear of corn on the sabbath day69 should not be forgotten. ‘The place of justice is a hallowed place.’70 There is a school of thought, however, that believes that the intention of Parliament is not a myth.71 In that regard it is as well to consider what Lord Simon of Glaisdale said in Ealing LBC v. Race Relations Board72: The court sometimes asks itself what the draftsman must have intended. This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he knows what canons of construction the courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention. Parliament, of course, in enacting legislation, assumes responsibility for the language of the draftsman. But the reality is that only a minority of legislators will attend debates on the legislation. Failing special interest in the subject-matter of the legislation, what will demand their intention will be something on the face of proposed legislation which alerts them to a questionable matter. Accordingly, such canons of construction as that words in a non-technical statute will primarily be interpreted according to their ordinary meaning or that a statute establishing a criminal offence will be expected to use plain and unequivocal language to delimit the ambit of the offence (i.e. that such a statute will be construed restrictively) are not only useful as part of that common code of juristic communication by which the draftsman signals legislative intent, but are also constitutionally salutory in helping to ensure that legislators are not left in doubt as to what they are taking responsibility for.

The Modern Approach The modern approach to the interpretation of an Act of Parliament is what is termed the Purposive Approach. As Lord Griffith put it in Pepper v. Hart,73 The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts must adopt a purposive approach which seeks to give effect to the true purpose of legislation. __________________________________________________________________________________________________________________________________________

69 Luke 6, 1-4. 70 Bacon, Essays, of Judicature, 56. 71 See Bennion, Statutory Interpretation pp.226-228 and pp.231-235, and Reed Dickerson, Materials on Legal Drafting p.51. 72 [1972] AC 342 at pp.360-361. 73 [1993] 1 All ER 42 at p.50.

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The Purposive Approach thus takes account not only of the words of the Act according to their ordinary meaning but also the context. ‘Context’ here does not mean simply ‘linguistic context’; the subject-matter, scope, purpose and (to some extent) background of the Act are also taken into consideration. There is no concentration on language to the exclusion of context (or, indeed, vice versa); the ultimate aim is one of synthesis. The language used by Lord Griffith in Pepper v. Hart is clear and cogent: to give effect to the true purpose of the legislation. He did not say ‘to give effect to the intention of Parliament’. And that, it is submitted, takes us again to a principle of the rule in Heydon’s Case74: That for the sure and true interpretation of all statutes … the office of all the judges is always to make such construction as shall [solve the problems which have arisen, and advance the solutions to the problem] and to suppress subtle inventions and evasions [which do not accord with the objects and purposes of the Act] and to add force and life to the cure and remedy according [to the objects and purposes of the Act, the demands of society and the dictates of common sense and justice.]75

Extrinsic Aids to Interpretation The road to Pepper v. Hart is scattered with doubts, criticism and boldness. Vera Sacks76 considers it perverse that judges refuse to seek the legislative intent in the very place where it might be found, that is, the background materials to the statute, Law Commission Reports, White Papers, Hansard etc.

Viscount Dilhorne in Davis v. Johnson77 stated that what is said by a Minister or member sponsoring a Bill is not a legitimate aid to the interpretation of an Act. Crawford78 observed, as regards the admissibility of extrinsic aids for the purpose of the interpretation or construction of legislation in the United States of America, that, After all intrinsic aids have been exhausted, if the meaning of the statute is still in doubt, certain extrinsic matters may be considered by the court in its efforts to ascertain the statute’s meaning. But the statute must be ambiguous before a resort to extrinsic evidence is justified.

Our tradition has been that travaux preparatoires – that is, ‘materials used in the preparation of, and having a formative influence on, the ultimately __________________________________________________________________________________________________________________________________________

74 (1884) 3 Co. Rep. 7a. 75 The italics and the words in the square brackets are supplied. 76 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ (1982) Stat LR p.143. 77 [1979] AC 264 at p.337. 78 Crawford, Construction of Statutes, p.365.

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adopted form of the treaty’79 – cannot be consulted in order to ascertain the intention of Parliament. Sacks observes that in Europe the approach to interpretation of statutes is eclectic, and although the practice varies from country to country, no European or American would seek to ban their use.80 The arguments are legion regarding the admissibility of extrinsic aids. The Renton Committee81 strongly argued against the use of extrinsic aids on the grounds of relevance, reliability and availability. It is also argued that the materials may be misleading as the words used might be agreed upon but not the purpose or intent. Equally, preparatory materials might tend to be prepared with a view to influence the courts in the interpretation or construction of an Act of Parliament or a provision thereof. The House of Lords has been willing to admit an official report for the purpose of ascertaining the background and objectives of an Act, but not to admit the same material for the purpose of construing it. Lord Dilhorne would have admitted recommendations where Parliament had by enacting the Act accepted the recommendations of the official report.82 Lord Simon83 pointed out that an official report and a consequential Act form an integral process and logically one could not look at the result for one purpose and not another. In Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg,84 the House of Lords laid down guidelines to the effect that reference to parliamentary debates are to be excluded but reference to other travaux preparatoires might be permitted only to determine the mischief which the Act seeks to remedy. The House of Lords took a different approach in Fothergill v. Monarch Airlines.85 Lord Wilberforce considered it proper that the House of Lords recognise that there may be cases where travaux preparatoires could be profitably used. The rule about the admissibility of extrinsic aid is now clear and settled. Official reports leading to legislation may be referred to for the purpose of ascertaining the mischief sought to be overcome, but not for the purpose of construction of the statute itself.86 There is no doubt that the policy or purpose of an Act may be found outside the strict words of the Act itself. The courts are now becoming accustomed to the ways of legislators. They are now learning to differentiate between the value of different kinds of material. Thus in general, debates in the legislature are much less frequently __________________________________________________________________________________________________________________________________________

79 Walker, The Oxford Companion to Law (1980) p.1231. 80 Vera Sacks, ‘Towards Discovering Parliamentary Intent’ [1982] Stat LR p.143. 81 Cmnd. 6035 paras. 19, 23. 82 Black-Clawson v. Papierwerke [1975] 1 All ER 810. 83 Ibid. 84 [1975] 1 All ER 810. 85 [1980] 2 All ER 696 at p.703. 86 Alec Samuels, ‘The Interpretation of Statutes’ [1980] Stat LR p.86.

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used than the reports presented by legislative committees. In France, the meaning suggested by the travaux preparatoires is not regarded as decisive and may even be ignored. In Scandinavia, travaux preparatoires are extensively used, not as evidence of the legislative intent, but as general information on the whole background to a particular Act, in cases where it is essential for the court to know the background in order to give meaning to its task.87 In the United States of America, the courts may properly refer to what is known as contemporaneous circumstances. These include the history of the times existing when the Act was enacted, the previous state of the law and the evil it intended to correct. The court may inform itself upon these matters, and the various extraneous considerations … are not to be resorted to in order to alter the meaning of the statute, but to remove whatever doubt that still remains after all intrinsic aids have been considered.88

The question that may be asked is ‘what materials should the courts have recourse to when seeking to ascribe meaning to a given statutory provision?’ It is as well to take a look at the different materials. Legislative History The materials on legislative history are of three kinds: (a) the legislative antecedents of the statutory provisions under consideration, for example, corresponding provisions in previous enactments; (b) pre-parliamentary materials relating to the provision in the Act in which it is contained. Reports of committees and commissions reviewing the existing law and recommending changes are examples; (c) parliamentary materials, such as the text of a Bill as first published and successively amended in its passage through Parliament, explanatory memoranda, proceedings in committees and parliamentary debates.89

The records of the debates and speeches in Parliament are the most likely source from which to discover evidence of the ‘intention of Parliament’. Fears have been expressed that an examination of the legislative history might be at the expense of the time devoted to the statutory text itself.90 This ‘view is best encapsulated in the quip that only when legislative history is doubtful do you go to the statute’91 itself. __________________________________________________________________________________________________________________________________________

87 Vera Sacks, supra, p.144. 88 Crawford, Construction of Statutes, pp.366-368. 89 Cross, Statutory Interpretation, by Bell and Engle, p.150 90 G. Parker ‘Criminal Law - Statutory Interpretation - Use of Parliamentary Debates’ - (1982) 60 Can. Bar Rev. 502 at 505. 91 United States v. Bass 404 US 336 (1971) 339 per Justice Marshall.

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In our system legislative history is not yet recognised as a permissible aid to construction or interpretation. Although a judge might look to the intention of Parliament when it brought forward the legislation (the so-called mens or sententia legis), the common law, (unlike the civil law) would argue that it is a rule of practice that while interpreting an item of legislation, the judge should not survey any debates or amendments which preceded its enactment. In essence, a judge must look to the legislation and not the legislative process. Many judges have commented on this rule of practice which tends to restrain their powers of statutory interpretation. Many have noted it, some have criticised it and even a few have departed from it.92

One argument against admissibility of legislative history is that the admission would mean that every lawyer who advised a client without first examining all the relevant history would be acting negligently. It would also require a lot of time and expense. It seems inconsistent also to permit the courts to look to legislative history in their construction of statutes while also recognising that an individual’s reliance upon that same history may offer some justification for conduct which is arguably inconsistent with the legislative intention as revealed in the history.93 All these argument notwithstanding, the courts have on occasion departed from the practice (eg in Sillery v. R)94 especially where a judge was personally involved in the production of the piece of legislation now up for construction. Lord Nottingham claimed in Ash v. Abdy95 to ‘have some reason to know the meaning’ of the Statute of Frauds because, he said, it had its rise from him; he had brought it into the House of Lords. In Rowe v. Law96 the Chief Justice of the Republic of Ireland substantiated his construction by turning to the legislative history of the Act, as did Lord Denning in Sagnata Investments Ltd. v. Norwich Corporation.97 According to Rhodes, White and Goldman98 the constitutional separation of powers requires a conscientious search for legislative intent. This would include investigating legislative history and other extrinsic aids in instances where the circumstances disclose relevant uncertainty. They suggested the criteria for the use of legislative history – something in the nature of __________________________________________________________________________________________________________________________________________

92 Vincent J.G. Power, ‘Parliamentary History as an Aid to Statutory Interpretation’, [1984] Stat LR 38-39. 93 S.J.Gibb, ‘Parliamentary Materials as Extrinsic Aids to Statutory Interpretation’, [1980] Stat LR p.29 at p.35. 94 (1981) 35 ALR 227 at p.233. 95 (1678) 3 Swan 644; 36 ER 1014. 96 [1978] IR 55. 97 [1971] 2 All ER 1441 at p.1445. 98 ‘The Search for Intent: Aids to Statutory Construction in Florida’ (1978) 6 Fla. H. U. L. Rev. 383.

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substantially increased committee reports, recording and retaining the records of committee hearings and floor details and requiring sponsor’s statement of intent99: According to the weight of authority and surely the better view, the court may consider the general history of a statute, including its derivation, that is, the various steps leading up to and attending its enactment, as shown by the legislative journals in its efforts to ascertain the intention of the legislature where it is in doubt.100

In the United States, amendments to a Bill and the action taken on them, messages from the Chief Executive, reports of legislative committees and debates of the legislature are often referred to, as indicative of the legislative intent where that intent is obscure: United States v. Raynor.101 In that case the United States Congress had passed an Act which provided that the possession of paper similar to that used by the Government in printing its obligation constituted a crime and the defendant was charged with violating the Act. The issue for determination was whether a paper similar but not identical to that used by the Government fell within the ambit of the section. The Court looked into the legislative history of the Act and concluded: The section now under consideration is plainly a combination of a long series of legislative aids, each of which has declared it to be a crime to have possession of paper counterfeiting the distinctive paper …. Each change since 1837 was intended to make the possession of counterfeit paper more dangerous for counterfeiters.

The Ghana Interpretation Act 1960 deals with this question of recourse to external materials. Section 19 empowers the court to turn to any text-book, or other work of reference, to the report or any memorandum published by authority in reference to the enactment or the Bill for the enactment and to any papers laid before the National Assembly in reference to it, but not to the debates in the Assembly.

This is a very wide provision. It makes it possible for a court to consider White Papers, Green Papers, the Memorandum to the Bill and text-books. The section, however, clearly excludes the use of parliamentary debates. Parliamentary Debates The traditional rule was that the courts could not have recourse to parliamentary debates for any purpose, be it to find out the mischief to be cured or the ‘intention of Parliament’. This rule was affirmed in Davis v. __________________________________________________________________________________________________________________________________________

99 Ibid at pp.405-407. 100 Crawford, Construction of Statutes, p.383. 101 302 US 540, 58 C 353, 82L Ed. 413.

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Johnson102 and in Hadmor Productions v. Hamilton,103 Lord Diplock said that, There are a series of rulings by this House, unbroken for a hundred years, and most recently affirmed emphatically and unanimously in Davis v. Johnson, that recourse to reports of proceedings in either House of Parliament during the passage of the Bill which … became the Act of Parliament that falls to be construed, is not permissible as an aid to its construction.

The non-admissibility of parliamentary debates for purposes of interpretation has nothing to do with parliamentary privilege; in recent years attempts have been made to change the position. Lord Scarman, in Tuck v. National Freight Corporation104 stated that if Parliament chooses to use language that is general to the point of ambiguity, ought not judges to be allowed the aid of, for example, official reports or the record of proceedings at the committee stage of the Bill to determine the intention of Parliament?105

He also wished that ‘Notes on Clauses’ used by Ministers when taking the Bill through Parliament could be referred to: ‘How useful they would be, not of course decisive but an invaluable guide …’ Lord Denning has been described as the most persistent advocate of a departure from the rule forbidding use of Hansard in statutory interpretation … Unlike some advocates of change, Lord Denning was not at all willing to wait for the Parliament in England to decide the dispute: instead he simply went ahead and looked at the records of parliamentary debates regardless of the weight of authority to the contrary… Even in 1976 he was aware that he was not supposed to look at Hansard in order to discover why Parliament took certain action. Nonetheless he did so.

Lord Dilhorne has argued that it is improper for a judge to look at Hansard. But what is intrinsically improper about reference to Parliamentary Debates? The Ghana Interpretation Act 1960 which by its s.19 actually set the pace for the use of extrinsic aids, surprisingly failed in the area of admissibility of parliamentary debates – influenced, no doubt, by the stand taken by the judges in England. The Memorandum to the Bill which later became the Act stated that, There are two cogent reasons for their exclusion: first, it would not be conducive to the respect which one organ of state owes to another, that its deliberations should be open to discussion in court and secondly, it would __________________________________________________________________________________________________________________________________________

102 [1979] AC 264 at p.337 per Viscount Dilhorne. 103 [1982] 2 WLR 322 at p.337. 104 [1979] 1 WLR 37 at 55. 105 It does appear that Lord Scarman has had a change of heart between Tuck and the Hadmor Production cases.

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greatly interfere with the freedom of debate if members had to speak in the knowledge that every remark might be subject to judicial analysis.

However, as Lord Hailsham, the Lord Chancellor, pointed out: If they really think that courts and practitioners do not read blue books in order to find out what statutes mean, they are living in a complete fool’s paradise. When I was at the Bar I was constantly having to advise as to the meaning of statutes and as constantly I was finding, as I do in this House and as I do when I sit judicially, that the words of the Parliamentary draftsman are at first sight incomprehensible. I always look at Hansard, I always look at everything I can.106

Lord Denning, in an attempt to make the admissibility of parliamentary debates possible, found a way of circumventing the difficulty. In a public address, the Parliamentary Commissioner had quoted portions of a debate in Parliament. These were then quoted by Professor Wade in one of his books, which brought them into the domain of permissible reference. In R v. Local Commission for Administration,107 Lord Denning explained: The Parliamentary Ombudsman, Sir Edward Compton, has acknowledged openly that he himself gained assistance by looking at the debates in Parliament on the subject. He looked at Hansard …. Now the question at once arises: are we the judges to look at Hansard when we have the self-same task? ... According to the recent pronouncement of the House of Lords in Davis v. Johnson108 ... we ought to regard Hansard as a closed book to which we as judges must not refer at all, not even as an aid to the construction of statutes.... By good fortune, however, we have been given a way of overcoming that obstacle. For the Ombudsman himself in a public address to the Society of Public Teachers of Law quoted the relevant passages of Hansard … as part of his address: and Professor Wade has quoted the very words in his latest text book on Administrative Law, 4th ed. (1977) p.82. And we have not yet been told that we may not look at the writing of the teachers of law. Lord Simonds was as strict upon these matters as any judge ever has been, but he confessed his indebtedness to their writings, even very recently …. So have other great judges. I hope therefore that our teachers will go on quoting Hansard so that a judge may in this way have the same help as others have in interpreting a statute.

According to Alec Samuels, with characteristic ingenuity, Lord Denning has found a possible way round the direct non-admissibility of Hansard, though one which might put pressure on text-book writers.109 __________________________________________________________________________________________________________________________________________

106 Parliamentary Debates, 1983 1986 cols 1345-1346. 107 [1979] QB 287 at p.311. 108 [1978] 2 WLR 553. 109 The Interpretation of Statutes [1980] Stat LR 98.

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Did the courts have to wait for the text-books to refer to parliamentary debates before they admit Hansard? The refusal to admit parliamentary debates as an aid to construction, be it noted, is a self-imposed rule. Policy Documents A judge may read privately whatever policy documents he chooses to read in order to arrive at an understanding of the legal effect of a statutory provision. Yet, in what circumstances is it permissible for the judge to refer explicitly to these policy documents in a judgment? According to Miers and Page,110 Domestic pre-legislative documents which include reports of Royal Commissions, the Criminal Law Revision Committee, the Law Commissions, the Law Reform Committee, departmental inquiries and Parliamentary Select Committees may be used as an aid to identify the mischief which the legislation is intended to remedy; but not for the purpose of construing enacting words in such a way as to conform with recommendations made in the report as to the form the remedy should take. By contrast, the explanatory memoranda and notes of clauses prepared by the department to accompany the parliamentary stages on a Bill may not be publicly referred to by a judge for any purpose.

But Crawford111 states that, In spite of authority to the contrary, the general policy of the state, or the established policy of the Legislature as revealed by its legislation generally should be considered in the construction of statutes …. Where doubt exists regarding the meaning of a statute, rather than allow a miscarriage of the intention of the legislature when that intention is in fact ascertainable, it would seem proper for the court to give the general policy of the state some consideration. Nevertheless, if the Legislature reveals an intent to depart from existing public policy, that intent must be effective; and the court should not ignore or override it.

Reports of Commissions and Committees The courts in Australia use the reports of the Law Commission in order to discover the mischief which an Act is intended to remedy. But Gibbs J is cautious: One [must] … confine one’s consideration of such a report to discovering the previous state of the law and the mischief or defect for which it was considered that the law did not provide: such a report is not to be used for the purpose of ascertaining directly what the Act was intended to mean.112 __________________________________________________________________________________________________________________________________________

110 Legislation, pp.174-175 111 Construction of Statutes, pp.371-372. 112 Wacal Developments Pty Ltd. v. Realty Development Pty Ltd. (1978) 14 CLR 503 at p.509.

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It was held in Attorney-General v. Maksimovich113 that the interim report of a commission of inquiry is likely to provide a useful compilation of background material which, so long as it is compatible with the language of the legislation ultimately enacted, may help in understanding the mischief to which it was addressed.

In Eastman Photographic Materials Co Ltd. v. Comptroller of General Patents,114 the Act under consideration was passed as a result of a report of a departmental Commission on the use of geographical names. Said Lord Halsbury: I think no more accurate source of information as to what was the evil or defect which the Act of Parliament now under consideration was intended to remedy could be imagined than the report of that Commission.

The House of Lords, in Assam Railways and Trading Co Ltd. v. Inland Revenue Commissioners,115 refused to admit the Royal Commission’s report. More recently, in Black-Clawson International Ltd. v. Papierwerke WaldhofAschaffenberg AG,116 a distinction was drawn between the admissibility of pre-parliamentary materials as evidence of surrounding circumstances and the admissibility of such materials as direct evidence of the intention of Parliament. In the United States of America and Western European countries no such distinction is made. Select Committees of either House of Parliament or some other publicly appointed Committee or Commission may be required to report on such matters for the very purpose of identifying changes which ought to be made in the law. Such a report may only be looked at in order to ascertain the relevant mischief.117 In the Black-Clawson case, Lord Reid pointed out that the courts should disregard expressions of intention by Committees reported before a Bill is introduced. Lord Denning appears to have agreed that the courts cannot look at what the Committee recommended! However, Viscount Dilhorne118 said: That one can look at such reports to discern the mischief is now, I think, established, but there is a difference of opinion as to what can be looked at in such reports. Can one have regard to the recommendations of the Committee or Commission? Where a draft Bill is attached to the report as is now frequently the case ... can one refer to the terms of the draft Bill when they have been enacted without material alterations by Parliament? Can one refer to the notes on the clauses of the draft Bill appended to it by the Committee? __________________________________________________________________________________________________________________________________________

113 (1985) 4 NWLR 300 at p.304 per Kirby P. 114 [1898] AC 571 at p.575. 115 [1935] AC 445. 116 [1975] AC 591. 117 Funning v. Board of Governors of the United Liverpool Hospitals [1933] All ER 454 at p.457. 118 [1975] AC 591 at pp.622-623.

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... Is it legitimate to make use of such parts of a report as an aid to the construction of the Act? In my opinion it is. The question why one is entitled to consider what was the mischief at which the Act was aimed is surely that that will throw a revealing light on the object and purpose of the Act, that is to say, the intention of Parliament; and applying Lord Halsbury’s observation ... what more accurate source of information both as to law at the time and as to the evil or defect which the Act was intended to remedy can be imagined than the report of such a Committee or, for that matter, the reports of the Law Commission?

Lord Dilhorne’s case is compelling, and one questions why Lord Reid thinks the court is ‘not ... entitled to take any of this into account in construing the Act’. Treaties It is usual for treaties to be accompanied by travaux preparatoires. Can the courts use a treaty to interpret an Act or admit the travaux preparatoires of the treaty to construe an Act? The question is easily answered where the Act resolves the problem by including the text of the treaty as a Schedule to the Act. And where the Act seeks to give effect to the treaty by adoption of the treaty, no doubt the travaux preparatoires can be consulted. Said Lord Diplock in Quazi v. Quazi119: It is a legitimate aid to construction of any provisions of the Act that are ambiguous or vague to have recourse to the terms of the treaty in order to see what was the obligation in international law that Parliament intended that this country should be enabled to assume. The ambiguity is to be resolved in favour of that meaning that is consistent with the provisions of the treaty.

According to Meirs and Page, where a treaty has become part of the law of the United Kingdom two conditions are required: ‘first, that the material is public and accessible, and secondly, that the travaux preparatoires clearly and indisputably point to a definite legislative intent.’120 In Fothergill v. Monarch Airlines Ltd., articles 18(1) and 26(2) of the Warsaw Convention Relating to International Carriage by Air as embodied in the Carriage by Air Act 1961121 were in issue. The texts of the Convention both in the English and in the French Acts were contained in the Schedule to the Act. There is a provision in the Act that in case of an inconsistency the French Act should prevail. It was held that any doubts could be resolved by looking at French text-books and judicial opinions on the subject. Cross therefore considers that, __________________________________________________________________________________________________________________________________________

119 [1980] AC 744 at p.808. 120 Legislation, pp.175-176. 121 9 & 10 Eliz. 2 ch 27.

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The difference in the judicial approach to travaux preparatoires in the case of treaties as compared with domestic legislation was justified by Lord Diplock on the ground that delegates to the conference giving rise to the treaty would have voted on the understanding that certain materials would be consulted, and that therefore no further clarification of the treaty’s wording on the particular point was necessary. To consult the travaux preparatoires best ensures the comity of nations and uniformity of interpretation among signatories.122

It should now be clear that judicial consideration of legislative action is not participation in the legislative process, nor an infringement of the legislative functions of Parliament. It is an exercise of the judicial function. The constitutional separation of powers requires a conscientious search for legislative intent. This should include investigating legislative history and other extrinsic material where there is ambiguity or even vagueness or uncertainty, and the courts should be able to resort to the use of extrinsic material if they are to perform efficiently their function of interpretation or construction. The legislative history of an Act would definitely help the courts in discovering the meaning of an ambiguous word or expression. Legislative history will also give sufficient information and insight not readily available elsewhere. We live in an age of increasing cultural, economic and social complexity. Legal solutions must match the attempts to solve the problems of the day through the instrumentality of legislation. The cultural, economic and social stimuli of the day are of immense importance in the search for a just society. The courts should not stand aloof, oblivious to these currents, or refuse to seek the meaning of words or expressions in an Act in the very materials which would explain the meaning the words and expressions are intended to have. Green Papers, parliamentary debates, White Papers, all have a part to contribute in this important exercise of understanding statutes. The various arguments against the use of extrinsic material are not enough. The arguments about inaccessibility, about unreliability, about overwhelming the judges – and lawyers – are not convincing in the face of the demands of social justice and all that go with it. If the legislators know that their words will be subject to careful scrutiny and analysis by the courts in the effort to do justice, they would be more careful in their approach to their responsibilities in relation to a Bill presented to them. Parliamentary debates are published. Is there then a problem of inaccessibility? The House of Lords admits official reports for the purposes of ascertaining the background, the mischief, the objectives of an Act of Parliament. Why not admit those materials for the purpose of construing an Act of Parliament? Lord Simon of Glaisdale was correct when he said that an official report and a __________________________________________________________________________________________________________________________________________

122 Statutory Interpretation, by Bell and Engle, p.164.

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consequential Act form an integral process and logically one cannot look at the result for one purpose and not for the other.123 The value in reading the parliamentary debates is to get to the pith and substance of the legislation. Travaux preparatoires should be used as evidence of legislative intent as well as general information on the whole background of an Act, material which is essential for the courts to know in order to give meaning to their tasks. Extrinsic material, legislative history, the previous state of the law, the evil intended to be corrected, are all vital to an understanding of an Act of Parliament, and the removal of the doubts that may remain.

Pepper (Inspector of Taxes) v. Hart This very important case found the House of Lords grappling with the issue of reference to the proceedings in Parliament as an aid to the construction of an ambiguous or obscure legislation. The legislation in question was the Finance Act 1976.124 The particular provisions which came up for construction were sub-sections 61(1), 63(1) and 63(2). They provided that, 61.(1) Where in any year a person is employed in director’s or higher-paid employment and – (a) by reason of his employment there is provided for him, or for others being members of his family or house-hold, any benefit to which this section applies; and (b) the cost of providing the benefit is not (apart from this section) chargeable to tax as his income, there is to be treated as emoluments of the employment, and accordingly chargeable to income tax under Schedule E, an amount equal to whatever is the cash equivalent of the benefit. 63.(1) The cash equivalent of any benefit chargeable to tax under s.61 above is an amount equal to the cost of the benefit, less so much (if any) of it as is made good by the employee to those providing the benefit. (2) Subject to the following subsections, the cost of a benefit is the amount of any expense incurred in or in connection with its provision, and (here and in those subsections) includes a proper proportion of any expense relating partly to the benefit and partly to other matters.

Nine masters and the bursar at an independent boy’s school were the taxpayers in this case. For the benefit of the members of the teaching staff, the school operated a concessionary fees scheme. The sons of the masters and the bursar were educated at the school on those concessionary terms. The fees __________________________________________________________________________________________________________________________________________

123 Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenberg AG [1975] 1 All ER 810 at pp.842-848. 124 C.40.

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they paid were one-fifth of the fees ordinarily charged to members of the public. The concessionary fees more than covered the additional cost to the school of educating the taxpayers’ sons. In the relevant years the school was not full to capacity, so the admission of the sons did not therefore cause the school to lose full fees which would otherwise have been paid by members of the public for the places so occupied. The education of the sons of the nine members and the bursar at reduced fees was a taxable benefit under s.61(1) of the Finance Act 1976. The taxpayers were assessed to income tax on the cash equivalent of that benefit on the basis that they were liable for a rateable proportion of the expenses in the running of the school as a whole for all the boys of the school. That proportion was roughly equal to the amount of the ordinary school fees. By s.63(1) of the 1976 Act, the cash equivalent of the benefit was an amount equal to the cost of the benefit and by s.63(2) the cost of the benefit was the amount of any expense incurred in or in connection with its provision. The taxpayers appealed against the assessments made by the Inspector of Taxes. They claimed that since all the costs of running the school generally would have had to be incurred in any event the only expense incurred by the school in or in connection with the education of their sons was the small additional or marginal cost to the school caused by the presence of their sons, that was covered by the fees they paid. Thus the cash equivalent of the benefit was nil. The Crown contended that the expense incurred in or in connection with the provision of education for the taxpayers’ sons was exactly the same as the expense incurred in or in connection with the education of all other pupils at the school. Accordingly the expense of educating any one child was a proportionate part of the cost of running the whole school. The Special Commissioner allowed the taxpayers’ appeals. It was held that since the taxpayers’ sons occupied only surplus places at the school at the school’s discretion and the fees paid by the taxpayers fully covered and reimbursed the cost to the school of educating the taxpayers’ sons no tax was payable by the taxpayers. The Crown appealed. The Court of Appeal affirmed the decision of the judge. The taxpayers then appealed to the House of Lords. In the House of Lords it became apparent that an examination of the proceedings in Parliament in 1976 in respect of sections 61 and 63 might help in determining (a)

whether Parliament intended that the cost of the benefit, that is to say, the amount of any expense incurred in or in connection with its provision, in s.63(2) meant the actual expense incurred by the school in providing the benefit, or

(b)

the average cost of the provision of the benefit (that being very close to a market value test).

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The House of Lords, by a majority, held that, (a) having regard to the purposive approach to the construction of legislation the courts had adopted in order to give effect to the true intention of the legislature, the rule prohibiting the courts from referring to parliamentary material as an aid to statutory construction should, subject to any question of parliamentary privilege, be relaxed so as to permit reference to parliamentary material where (i)

the legislation was ambiguous or obscure or the literal meaning led to an absurdity,

(ii) the material relied on consisted of statements by a minister or other promoter of the Bill which led to the enactment of the legislation together, if necessary, with such other parliamentary material as was necessary to understand the statements and their effect, and (iii) the statements relied on were clear; (b) the use of parliamentary material as a guide to the construction of ambiguous legislation would not infringe s.1, art 9 of the Bill of Rights since it would not amount to a ‘questioning’ of the freedom of speech or parliamentary debate provided counsel and the judge refrained from impugning or criticising the minister’s statements or his reasoning; (c) the purpose of the courts in referring to parliamentary material would be to give effect to, rather than thwart through ignorance, the intentions of Parliament, nor would it be the purpose of the courts to question the processes by which the legislation was enacted or to criticise anything said by anyone in Parliament in the course of enacting it; (d) section 63(2) of the 1976 Act was clearly ambiguous because the ‘expense incurred in or in connection with’ the provision of in-house benefits could be interpreted as being either the marginal cost caused by the provision of the benefit in question or as a proportion of the total cost incurred in providing the service both for the public and for the employee (the average cost); (e) the parliamentary history of the 1976 Act and statements made by the Financial Secretary to the Treasury during the committee stage of the Bill made it clear that Parliament had passed the legislation on the basis that the effect of sections 61 and 63 was to assess in-house benefits, and particularly concessionary education for teachers’ children, on the marginal cost to the employer and not on the average cost of the benefit. Accordingly s.63 should be given that meaning; (f) since the Crown had not identified or specified the nature of any parliamentary privilege going beyond that protected by the Bill of Rights, there was no defined privilege as to the existence and validity of which the House of Lords in its judicial capacity would otherwise have been entitled to make a determination, and it would therefore not be right to withhold

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from the taxpayers the benefit of a decision to which, in law, they were entitled.

Lord Bridge of Harwich found it very difficult, in conscience, to reach a conclusion adverse to the taxpayers on the basis of a technical rule of construction requiring him to ignore the very material which ... indicates unequivocally which of the two possible interpretations of s.63(2) of the 1976 Act was intended by Parliament .... It should … only be in the rare cases, where the very issue of interpretation which the courts are called on to resolve has been addressed in parliamentary debate and where the promoter of the legislation has made a clear statement directed to that very issue, that reference to Hansard should be permitted. Indeed, it is only in such cases that reference to Hansard is likely to be of any assistance to the courts. Provided the relaxation of the previous exclusionary rule is so limited, I find it difficult to suppose that the additional cost of litigation or any other ground of objection can justify the court continuing to wear blinkers which, in such a case as this, conceal the vital clue to the intended meaning of an enactment.125

To Lord Griffiths, The days have long passed when the courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears on the background against which the legislation was enacted. Why then cut ourselves off from the one source in which may be found an authoritative statement of the intention with which the legislation is placed before Parliament.126

Lord Oliver of Aylmerton stated that, A statute is, after all, the formal and complete intimation to the citizen of a particular rule of the law which he is enjoined, sometimes under penalty, to obey and by which he is both expected and entitled to regulate his conduct …. But experience shows that language – and, particularly, language adopted or concurred in under the pressure of a tight parliamentary timetable – is not always a reliable vehicle for the complete or accurate translation of legislative intention; and I have been persuaded ... that the circumstances of this case demonstrate that there is both the room and the necessity for a limited relaxation of the previously well-settled rule which excludes reference to parliamentary history as an aid to statutory construction … I accept, therefore, that in referring to “the cost of the benefit” and the “expense incurred in ... its provision”, s.63(1) and (2) of the Finance Act 1976 introduced an element of ambiguity. That is underlined by the absurdity which __________________________________________________________________________________________________________________________________________

125 Ibid at p.49. Emphasis supplied. 126 Ibid at p.50. Emphasis supplied.

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would result from a literal construction of the word “cost” in the case of a loss-making concern such as British Rail or a heavily endowed institution, where the employee’s benefit would have to be valued at a figure in excess – indeed, it may be many times in excess – of the market price of the service provided. The references to Hansard ... put it beyond doubt that that could not have been the intention of Parliament in enacting the section.127

Lord Browne-Wilkinson reviewed extensively the case law on the subject of the admissibility of extrinsic aids and of parliamentary debates in the interpretation or construction of an Act of Parliament. He came to the conclusion that, Where the words used by Parliament are obscure or ambiguous, the parliamentary material may throw considerable light not only on the mischief which the Act was designed to remedy but also on the purpose of the legislation and its anticipated effect. If there are statements by the minister or other promoter of the Bill, these may throw as much light on the “mischief” which the Bill seeks to remedy as do the white papers, reports of official committees and Law Commission reports to which the courts already have regard for that purpose. If a minister clearly states the effect of a provision and there is no subsequent relevant amendment to the Bill or withdrawal of the statement it is reasonable to assume that Parliament passed the Bill on the basis that the provision would have the effect stated. There is no logical distinction between the use of ministerial statements introducing subordinate legislation … and such statements made in relation to other statutory provisions which are not in fact subsequently amended …. In my judgment ... reference to parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words .... Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court’s duty in so doing to give effect to the intention of Parliament in using those words .... Parliament never intends to enact an ambiguity ... but in a few cases it may emerge that the very question was considered by Parliament in passing the legislation. Why in such a case should the courts blind themselves to a clear indication of what Parliament intended in using those words? The court cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament’s true intention be enforced rather than thwarted? The courts can now look at white papers and official reports for the purpose of finding the “mischief” sought to be corrected, although not at draft clauses or proposals for the remedying of such mischief. A ministerial statement made in __________________________________________________________________________________________________________________________________________

127 Ibid at pp.52-53. Emphasis supplied.

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Parliament is an equally authoritative source of such information; why should the courts be cut off from this source of information as to the mischief aimed at? ... Given the purposive approach to construction now adopted by the courts in order to give effect to the true intentions of the legislature, the fine distinctions between looking for the mischief and looking for the intention in using words to provide the remedy are technical and inappropriate. Clear and unambiguous statements made by ministers in Parliament are as much the background to the enactment of legislation as white papers and parliamentary reports .… The courts should not deny themselves the light which parliamentary materials may shed on the meaning of the words Parliament has used and thereby risk subjecting the individual to a law which Parliament never intended to enact .… Recourse is already had to white papers and official reports not because they determine the meaning of the statutory words but because they assist the court to make its own determination …. The exclusionary rule should be relaxed so as to permit reference to parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.127a

The House of Lords was not persuaded by the argument that the practical difficulties arising from a limited relaxation of the rule was sufficient to outweigh the need for the Courts to give effect to the words of an Act of Parliament by reference to parliamentary material. There are serious considerations for permitting the relaxation of the exclusionary rule: (a) experience in New Zealand and Australia had shown that not only are parliamentary materials available but also that they are readily understandable by the lawyer as well as the layman; (b) the suggestion that lawyers and judges are not familiar with parliamentary procedures and will thus have difficulty in giving proper weight to the parliamentary materials is a very weak one; (c) the danger of litigation becoming time-consuming and more costly will not necessarily be significant as long as the courts maintain strict control over the use of parliamentary materials; (d) the cost of researching to the legal adviser is over-estimated.128

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127a Emphasis supplied. 128 Ibid pp.66-67 per Lord Browne-Wilkinson.

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Lord MacKay LC, while agreeing that the appeal should be allowed, was unable to concur in the considerations mentioned above. He had no objection in principle to a relaxation of the rule, but felt that the practical difficulties of relaxing the rule would outweigh its effectiveness: (a)

the difficulty of legal advisers having to study in practically every case the whole proceedings in Parliament on the Bill in question to see whether or not there is any help to be gained from them;

(b)

the difficulty of an immense increase in the cost of litigation confirmed by the various Law Commissions.129

Bill of Rights The House of Lords were in complete agreement that (a)

the use of parliamentary materials as a guide to the construction of an Act of Parliament would not infringe s.1 of article 9 of the Bill of Rights, 1688.130 The provision states “That the freedom of speech and debate or proceedings in Parlyament ought not to be impeached or questioned in any Court or place out of Parlyament”;131

(b)

the purpose of the article is to protect members of Parliament from any penalty, civil or criminal, for what they said and to enable them to discuss what they, as opposed to the Sovereign, choose to discuss;

(c)

the relaxation of the exclusionary rule would not amount to a ‘questioning’ of the freedom of speech or parliamentary debate provided counsel and judge refrained from impugning or criticising the minister’s statements or the reasoning of the minister.

Lord Griffiths said: I agree that the use of Hansard as an aid to assist the court to give effect to the true intention of Parliament is not “questioning” within the meaning of s.1 article 9 of the Bill of Rights (1688). I agree that the House is not inhibited by any parliamentary privilege in deciding this appeal.132

Lord Oliver of Aylmerton also said: I find myself quite unable to see how referring to the reports of parliamentary debates in order to determine the meaning of words which Parliament has employed could possibly be construed as “questioning” or “impeaching” the __________________________________________________________________________________________________________________________________________

129 Ibid pp.47-48. 130 1 Will. & Mar. Second Session, c.2. 131 See p.55 of the judgment of Lord Browne-Wilkinson. 132 Ibid p.50.

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freedom of speech or debate or proceedings in Parliament or as otherwise infringing the provisions of art. 9 of s.1 of the Bill of Rights.133

Lord Browne-Wilkinson considered that the purpose of the courts in referring to parliamentary material would be to give effect to, rather than thwart through ignorance, the intentions of Parliament and not to question the legislative process leading up to the enactment or to criticise anything said by anyone in Parliament in the course of enacting it. A writer in support of the judgment has expressed surprise at the submission by the Crown that citing Hansard in court infringes parliamentary privilege. He referred to the argument by the Crown as ‘absurd.’ The criticism is unsparing on this issue: It is surely one thing for Parliament to commit the Sheriff of Middlesex for contempt in levying execution on Hansard’s property,134 but quite another to complain that the courts are giving effect to what might for the first time accurately be described as “the intention of Parliament”.135

Francis Bennion agrees with Lord Browne-Wilkinson that the resolution gives leave only for reference to be made to debates and that the reference does not authorise discussion or argument about what was said in the debates. Bennion is of the opinion that, Article 9 is badly drafted and ambiguous since “freedom” may qualify only “speech” or it may qualify “debates or proceedings in Parliament.” In other words, is it merely the freedom of parliamentary debates and proceedings that ought not to be impeached or questioned or is it the debates and proceedings in its entirety?’136

But he was not convinced that the view adopted by the House of Lords was correct: To allow an advocate to cite in court, as an indication of the intended legal meaning of an Act, a statement made in Parliament by the minister sponsoring the Bill for the Act, surely must involve “questioning” the ministerial statement in court.137

Advocates’ arguments and counter-arguments in court in an effort to understand what the promoter of a Bill has said in Parliament and the judge’s view on the arguments do not amount to questioning the statement made by the promoter in Parliament. It is part of the time-honoured method the courts have evolved over the years in order to ascertain the meaning of what has been said. To try to find out what a person has said is not the same thing as __________________________________________________________________________________________________________________________________________

133 Ibid p.53. 134 (1840) 11 A& E 273. 135 The Current Notes (1993) British Tax Review, p.1. 136 Statute Law, (1992) All ER Annual Review, p.394. 137 Ibid p.396.

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finding out whether that person has any right to say it. There is a marked difference between questioning the right of a person and questioning the exercise of that right. And clearly there is a difference between, (a) a right, (b) the normal exercise of the right, and (c) the meaning of the words used in the exercise of the right. Before the second hearing of the case, the Attorney-General submitted a letter written by the Clerk of the House of Commons referring to a resolution passed by the House of Commons on 31 October 1980 giving general leave for reference to be made to Hansard or other parliamentary reports in court proceedings. The relevant portion of the letter of the 5 June 1992 stated: In my opinion, the use proposed for the Official Report of Debates in this case is beyond the meaning of the “reference” contemplated in the Resolution of October, 1980. If a court were minded in particular circumstances to permit the questioning of the proceedings of the House in the way proposed, it would be proper for the leave of the House to be sought first by way of petition so that, if leave were granted, no question would arise of the House regarding its Privileges as having been breached.

The House of Lords held that since the Crown or the Clerk of the House of Commons had not identified or specified the nature of any parliamentary privilege going beyond that protected by the Bill of Rights, there was no defined privilege as to the existence and validity of which the House of Lords in its judicial capacity would otherwise have been entitled to make a determination. It would therefore not be right to withhold from the tax payers the benefit of a decision to which, in law, they were entitled. It does appear that on this point the omission on the part of the Crown to adequately prepare and submit a full argument was crucial to its rejection. Despite having notice that the resumed hearing before the House of Lords was to consider references to parliamentary material, the Attorney-General did not present his argument until the start of the hearing and to the other side. Nor was an adjournment requested to enable the House of Commons to consider the matter. Perhaps the Crown, through the Attorney-General, never believed the submission would carry much weight on the decision. The Outlook Pepper v. Hart may now be considered a change of judicial approach to the interpretation or construction of an Act of Parliament. The rules which tend to disapprove of the use of extrinsic aids to construction may have to be looked at again. In R v. Warwickshire County Council, ex p. Johnson,138 a case involving a reference to parliamentary material, Pepper v. Hart was followed __________________________________________________________________________________________________________________________________________

138 [1993] 2 WLR 1. See also Stubbings v. Webb [1993] 2 WLR 120; Foster v. Chief Adjudicating Officer [1993] 2 WLR 292; [1993] 1 All ER 705 HL.

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in order to construe s.20 of the Consumer Protection Act 1987.139 The door has been opened. It will be difficult now to close it.

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139 C.43.

Chapter 5 Presumptions

A presumption is a mere legal device, yet it is a rule of law. It operates, in the field of the interpretation or construction of an Act of Parliament, to allow certain inferences to be drawn from available material. It is an assumption that it is legitimate to make in order to achieve a result, legal and desirable, in a given set of circumstances. The presumption of innocence, for example, is a presumption of law jealously guarded by the courts. Thus, in addition to the rules of interpretation discussed in Chapter Four, the courts have accepted certain presumptions of law which are called to aid in the interpretation or construction of an Act of Parliament.

Consistency It is a basic principle in legislative drafting, and one accepted by the courts, that the same idea should be expressed in the same way every time it is expounded. Thus different ideas should be differently expressed, and where comparable ideas are expressed they are correspondingly identified to indicate the appropriate differences in meaning. Therefore, in the interpretation of an Act of Parliament, the courts presume that a word used with one meaning is intended to bear that meaning each time the word is used in the Act. However, any obvious departure from this principle would be treated to mean a departure in meaning. A court would then be faced with two interpretations. In those circumstances, If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, [the court would] avoid a construction which would reduce the legislation to futility and [would] rather accept the bold construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If the language is capable of more than one interpretation, one ought to discard the more natural meaning if it leads to an unreasonable result and adopt the interpretation which leads to a reasonable practical result.1

In Giffels & Vallet v. The King,2 it was put clearly that, while it is quite true that a word may have different meanings in the same __________________________________________________________________________________________________________________________________________

1

Gill v. Donald Humberstone Co. Ltd. [1963] 1 WLR 929 at pp.933-934 See also Nokes v. Doncaster Amalgamated Collieries Ltd. [1940] AC 1014 at p.1022; Bracey v. Read [1963] 1 Ch 88.

2

[1952] 1 DLR 620 at p.630.

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statute or even in the same section, it is not to be forgotten that the first inference is that a word carries the same connotation in all places where it is found in a statute.

In Income Tax Commissioners for City of London v. Gibbs, 3 Lord Macmillan said: The scheme of legislation in the matter in hand has been far from logical. It has been a case of makeshift patches of different hands, and verbal consistency is the last virtue that can be attributed to a code which uses so vital a term as “assessment” in no less than eight differing senses … Indeed, Lord Wrenbury, in Kensington Income Tax Commissioners v. Aramayo4 went so far as to say that “no reliance can be placed upon an assumption of accuracy in the use of language in these Acts.” Section 62 of the Act of 1880 does not profess to be an amendment of the previous law. It is a new departure and … its language ... may fairly be held to cover the case of changes in the persons carrying on a partnership concern. The draftsman of s.62 may have taken that view and [may] have regarded a change in partnership personnel as a ceasing by one set of persons to carry it on and a succeeding to it of another set of persons, notwithstanding, or perhaps without due regard to, the distinction drawn in the fourth rule in the Act of 1842.

Consolidation Acts Director of Public Prosecutions v. Schildkamp5 can be cited as an authority for the very strong presumption that a provision in a consolidation Act does not alter the pre-existing law. This presumption is based upon parliamentary procedure: the assurance is given that the consolidating Bill does not make a substantial change in the existing law and that assurance facilitates the progress of the Bill in Parliament. It practically precludes amendment being moved during the committee stage of the Bill.6 In Mitchell v. Simpson,7 Lord Esher said: The [Sheriffs Act 1887] is a consolidation Act, and the provision in question is in substantially the same terms as that of the Act of Geo. 2, and therefore, in order to determine the meaning of the provision, we must consider to what the Act of Geo. 2 was applicable.

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3

[1942] AC 402 at p.424.

4

[1916] 1 AC 215 at p.228.

5

[1971] AC 1.

6

See also Beswick v. Beswick [1968] AC 58 at p.73; Mackay v. Davies (1904) 1 CLR 483 at p.491.

7

(1890) 25 QBD 183 at p.188.

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Reasonableness of an Act – Avoidance of Injustice In Pepper v. Hart,8 Lord Browne-Wilkinson stated that ‘Parliament never intends to enact an ambiguity’. However, the instances are numerous where the courts are faced with ambiguity in a provision of an Act of Parliament. A set of words used in an Act may be capable of more than one meaning. A court has to choose, in those circumstances, the interpretation or construction which best suits the purpose of the legislation. The courts proceed on the basis that it is not the duty of a Court of law to decide on the reasonableness or unreasonableness of an Act of Parliament. Thus in Holmes v. Bradfield Rural District Council,9 Finnemore J said: The mere fact that the results of a statute may be unjust or absurd does not entitle this court to refuse to give it effect.

In Salmon v. Duncombe,10 the Judicial Committee of the Privy Council treated as immaterial the words ‘as if such subject resided in England’ in order to make sense and give meaning to the statute. To do otherwise would be to reduce s.1 of the Natal Ordinance No. 1 of 1856 to a nullity. So also in R v. Vasey & Lally,11 the court rearranged the words of an amendment in order to make sense of the amendment and carry out the manifest object of the amendment. The presumption of reasonableness of an Act of Parliament involves other principles of construction, which are: (a) statutory provisions would be interpreted to affect all persons equally and impartially, unless other persons or classes of persons are specifically excluded from the ambit of the legislation; (b) the legislature never intends to deprive an individual of that individual’s existing vested rights, whether the rights were acquired under the Common Law or under a statute; (c) statutes imposing taxes would be strictly construed in favour of the person liable to pay tax; (d) penal statutes would not be so strictly construed as to result in the creation of an absurdity; (e) an accused person must have a guilty mind in the commission of an offence before that person could be convicted of an offence.

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8 9

[1993] 1 All ER 42 at p.64.

[1949] 2 KB 1 at p.7. 10 (1886) 11 AC 627. 11 [1905] 2 KB 748.

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Inequality of treatment The use of the universal description, a person, in an Act of Parliament means that the Act demands an equality of treatment; it applies equally to all persons. Thus unless the Act specifically or by necessary implication limits its application to certain persons or to a class of persons, all other persons not specifically excluded are included in its application. The courts will decline to assist a person who seeks their aid in order to relieve him or herself from express statutory provisions.12 In Equitable Life Assurance Society of USA v. Reed,13 Lord Dunedin stated that when a statutory provision lays down a rule of public policy, neither party to a contract can contract out of it. In Burrow’s Case,14 Vice-Chancellor Bacon was of the opinion that ‘the doctrine of estoppel cannot be applied to an Act of Parliament’. Equality of treatment applies equally to subsidiary legislation: the conditions in an enabling Act provided for the protection or benefit of the public cannot be dispensed with (R v. Bertrand).15 Modern written constitutions now assert equal treatment under the law. These constitutions specify in great detail the provisions relating to Fundamental Human Rights and the areas within which discrimination will be permitted – and permitted only – by law. Vested rights An Act of Parliament is never construed so as to interfere with vested rights. It is a presumption that is usually invoked where a provision in a statute is shown to have two meanings. In Attorney-General for Canada v. Hallett & Carey Ltd.,16 Lord Radcliffe explained: It is fair to say that there is a well-known general principle that statutes which encroach upon the rights of the subject, whether as regards person or property, are subject to a “strict” construction. Most statutes can be shown to achieve such an encroachment in some form or another, and the general principle means no more than that, where the import of some enactment is inconclusive or ambiguous, the court may then properly lean in favour of the interpretation that leaves private rights undisturbed.

In R v. Halliday,17 Lord Aitkinson said that he could never appreciate the contention __________________________________________________________________________________________________________________________________________

12 Edwards v. Edwards (1876) 2 Ch D 291 at p.297. 13 [1914] AC 587 at p.595. 14 (1880) 14 ChD 432 at p.441. 15 (1867) LR 1 PC 520. 16 [1952] AC 427 at p.450. 17 [1917] AC 260 at p.274.

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that statutes invading the liberty of the subject should be construed after one manner, and statutes not invading it after another, that certain words should in the first class have a meaning put upon them different from what the same words would have put upon them when used in the second. I think the tribunal whose duty it is to interpret a statute of the one class or the other should endeavour to find out what, according to the well-known rules and principles of construction, the statute means, and if the meaning be clear to apply it in that sense. Should the statute be ambiguous, equally susceptible of two meanings, one leading to an invasion of the liberty of the subject, and the other not, it may well be that the latter should be preferred on the ground of the presumed intention of the Legislature not to interfere with it.

Taxation statutes A tax is a pecuniary burden imposed by the government of the day, the object of which is to generate revenue for public purposes. It can only be imposed through legislation; without legislative authority the government cannot impose a tax on income or property. Being a creature of legislation, it is thus subject to all the rules and principles to which an Act of Parliament is subject where it comes to matters of construction and interpretation. In Attorney-General v. Carlton Bank,18 Lord Russell of Killowen CJ saw no reason why any special canons of construction should be applied to any Act of Parliament, nor that there was authority for saying that a taxing Act is to be construed differently from any other Act. The duty of the court is … in all cases the same, whether the Act to be construed relates to taxation or to any other subject, viz. to give effect to the intention of the legislature, as that intention is to be gathered from the language employed, having regard to the context in connection with which it is employed. The court must no doubt ascertain the subject-matter to which the particular tax is by the statute intended to be applied, but when once that is ascertained, it is not open to the court to narrow or whittle down the operation of the Act by considerations of hardship or business convenience, or the like.

However, in Oriental Bank v. Wright,19 the Judicial Committee of the Privy Council stated that, the intention to impose a charge upon a subject must be shown by clear and unambiguous language.

Therefore in the words of Lord Hanworth MR,

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18 [1989] 1 KB 64 at p.71. 19 (1880) 5 App Cas. 842 at p.856.

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Either in the clear words of a taxing statute the subject is liable or if he is not within the words, he is not liable.

And in IRC v. Saunders,20 Lord Reid said: It is sometimes said that we should apply the spirit and not the letter of the law so as to bring in cases which, though not within the letter of the law, are within the mischief at which the law is aimed. But it has long been recognised that our courts cannot so apply taxing Acts.

It is thus clear from the cases that taxing statutes are strictly construed, so that (a) the person sought to be taxed must fall within the clear words of the Act, whatever may be the consequences; (b) the Courts will take the Act as a whole in determining whether a wider meaning or a narrower meaning is intended; (c) of two alternative constructions, the Courts will accept the construction that favours the subject and is consistent with the scheme of the legislation.

Penal statutes It is important to be clear what the term ‘penal statutes’ actually means. Penal statutes are statutes which create offences against the State. The character of the punishment for the offence is not important. An Act of Parliament normally contains a command to do a thing or a prohibition to refrain from doing a thing and there is usually a sanction to enable the command or prohibition to be enforced. That does not mean that an Act of that nature is necessarily a penal statute. In Attorney-General v. Bradlaugh,21 Brett MR said that, The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did ... that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime and would be a criminal enactment.

In Tuck & Sons v. Priester,22 Lord Esher said that the court must be careful in construing s.6 of the Copyright Act,186823 because it imposes a penalty. If there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If __________________________________________________________________________________________________________________________________________

20 [1958] AC 285 at p.298. 21 (1885) 14 QBD 667 at p.687. 22 (1877) 19 QBD 629 at p.638. 23 25 & 26 Vict c.68.

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there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.

This was followed in London County Council v. Ayelsbury Dairy Co24 where Wright J said: I have certainly always understood the rule to be that where there is an enactment which may entail penal consequences, you ought not to do violence to its language in order to bring people within it.

In order to determine whether an Act of Parliament is a penal statute consideration should be given to whether (a) the imposition of a forfeiture or a penalty is such that the procedure to be used in enforcing the law is criminal procedure25; (b) the fine, forfeiture or penalty is payable to an individual or to the State; but the fact that it is payable to an individual does not necessarily mean that the fine, forfeiture or penalty is a civil remedy26; (c) the penalty is exacted by way of punishment or by way of compensation; for if it is by way of punishment, then the contravention is a criminal offence, even if it is a statutory offence; and if it is by way of compensation, then the penalty is liquidated damages27; (d) the penalty is recoverable as a debt in a civil cause or matter, for if it is so recoverable it is not penal28; (e) the penalty to be recovered is for the benefit of an aggrieved person29; (f) the statute concerned is merely remedial though also penal.30

Mens rea Mens rea means the guilty mind, the unlawful intention, with which an act is done – or omitted to be done. It is an essential element in criminal responsibility, as well as in some civil wrongs. Carelessness, negligence and recklessness import an element of mens rea. The criminal intent or the wrongful purpose with which a person does an act turns the act into an __________________________________________________________________________________________________________________________________________

24 [1898] 1 QB 106 at p.109. 25 Mellor v. Denham (1880) 5 QBD 467; Ex p. Schofield [1891] 2 QB 428; R v. Whitchurch (1881) 7 QBD 534; R v. Paget (1881) 8 QBD 151. 26 R v. Paget (1881) 8 QBD 151. 27 R v. Tyler [1891] 2 QB 588. See also Musgrove v. Chung Teeong Tay [1891] AC 272. 28 Girdlestone v. Brighton Aquarium Co. (1878) 3 Ex D 137. 29 Earl of Mexborough v. Whitwood U D Co. [1897] 2 QB 111. 30 Stanley v. Wharton (1821) 9 Price 301 at p.310; Hobbs v. Hudson (1890) 25 QBD 232; Ex p. Pearson (1873) LR 8 Ch App 667 at p.673; Derby Corporation v. Derbyshire County Council [1897] AC 550.

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offence. It is part of the ability of the prudent person to foresee the consequences of the wrongful act. Thus where an act is prohibited by law, the law is construed so as, in the appropriate cases, to make mens rea an ingredient of the offence. However, there are limitations. In murder, for example, under the doctrine of constructive malice, where death ensues in the course of the commission of an unlawful act, it is immaterial whether or not the person charged with the offence intended or did not foresee that the conduct complained of might lead to death.31 Equally, a provision of an Act of Parliament may be so drafted that, considering the subject-matter of the provision, it is immaterial whether or not a person charged under that provision had any intention to break the law, or otherwise to do what is prohibited. In such cases the words of the provision and the subject-matter are important considerations. So also are the circumstances that make for reasonable construction of the provision and the sanction imposed for the infringement of the law.32 Another limitation in the application of mens rea is the presence of mistake or ignorance of fact. A belief, honestly and reasonably held, in the existence of certain circumstances which are true, would make a wrongful act an innocent one.33 The conduct complained of in such circumstances might not be voluntary, nor would it be reasonable to impute foresight of the consequences. This rule is applied in some cases to statutory offences. Thus in the Tolson case, it was a good defence that the woman charged with bigamy believed on reasonable grounds that her husband was dead. However, in R v. Prince, 34 there was total prohibition of the act complained of. The position then is that ignorance of the material facts would not avail as a defence where there is absolute prohibition. Where the law categorically prohibits the doing of an act, it would not be a defence to argue that one did the act in ignorance. The public must be protected against the doing of certain things. A person cannot be allowed to set fire to a building and then claim an intention not to cause injury to persons, or damage to property, in the building. In general, a master is not responsible for the acts of the servant: The criminal law makes no one punishable for an offence but the person who either committed it or incited and procured the other to commit it, or who aided in its commission.35

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31 Director of Public Prosecutions v. Beard [1920] AC 479; R v. Stone (1937) 53 TLR 1046. 32 R v. Tolson (1889) 23 QBD 164 at pp.172-176, per Wills J. 33 R v. Tolson (1889) 23 QBD 164 at p.181, per Cave J. 34 (1875) LR CCR 154. 35 R v. Holbrook [1878] 4 QBD 42 at p.47 per Lush J.

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But, where the prohibition is absolute or it is intended for the protection of the public, a master may be held liable: Parker v. Alder,36 Christie, Manson & Woods v. Cooper, 37 Allen v. Whitehead, 38 and Hobbs v. Winchester Corporation.39 Drunkenness may also be taken into account whether there is mens rea. A person may be so drunk as to be incapable of forming an intention. In R v. Meade,40 Lord Coleridge’s direction to the jury was held right: if the mind at that time is so obscure by drink, if the reason is dethroned and the man is incapable therefore of forming that intent (i.e. the intent to kill or inflict serious injury), it justifies the reduction of the charge from murder to manslaughter.

As with drunkenness, so it is with • natural disabilities: Chisholm v. Doulton41; • insanity: R v. Marsland,42 and R v. Kopsch43; • infancy, with its various degrees of criminal responsibility: R v. Owen,44 R v. Waite,45 R v. Tatam,46 R v. Eldershaw,47 R v. Williams48 and R v. Brown.49 The tendency now is to lessen the importance of mens rea in crime. In 1937 Goddard J said50: With the complexity of modern legislation one knows that there are times when the court is constrained to find that, by reason of the clear terms of an Act of Parliament, mens rea or the absence of mens rea becomes immaterial and that if a certain act is done, an offence is committed whether the person charged knew or did not know of the Act.

In 1946, as Lord Goddard LCJ, he said: __________________________________________________________________________________________________________________________________________

36 [1899] 1 QB 20. 37 [1900] 2 QB 522. 38 [1930] 1 KB 211. 39 [1910] 2 KB 471. 40 [1909] 1 KB 895. 41 [1889] 22 QBD 736; 1 Hawk PC 1. 42 7 Cr App 77. 43 (1925) 19 Cr App R 50. 44 4 C & P 236. 45 [1892] 2 QB 600. 46 (1921) 15 Cr App R 122. 47 3 C & P 396. 48 [1893] 1 QB 320. 49 [1890] 24 QBD 357. 50 Evans v. Dell (1937) 53 TLR 310 at p.313.

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It is of the utmost importance for the liberty of the subject that a court should always bear in mind that unless a statute either clearly or by necessary implication rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind.51

In 1948 Lord Goddard LCJ said52: If a statute contains an absolute prohibition against the doing of some act, as a general rule mens rea is not a constituent of the offence, but there is all the difference between prohibiting an act and imposing a duty to do something on the happening of a certain event. Unless a man knows that the event has happened, how is he to carry out the duty imposed?

In 1949, Lord Goddard LCJ said53: Actus non facit reum nisi mens sit rea is a cardinal doctrine of the criminal law. No doubt the legislature can create offences which consist solely in doing an act whatever the intention or state of mind of the actor may be ... of late years the courts have been so accustomed to dealing with a host of offences created by regulations and orders independent of guilty intention, that it is desirable to emphasise that such cases should be regarded as exceptions to the rule that a person cannot be convicted of a crime unless it is shown not only that he has committed a forbidden act or default but also that a wrongful intention or blameworthy condition of mind can be imputed to him.

This brings to mind the words of Wills J in R v. Tolson54: Although, prima facie and as a general rule, there must be a mind at fault before there can be a crime, it is not an inflexible rule, and a statute may relate to such a subject-matter and may be so framed as to make an act criminal whether there has been any intention to break the law or otherwise to do wrong, or not. There is a large body of municipal law in the present day which is so conceived. By-laws are constantly made regulating the width of thoroughfares, the height of buildings, the thickness of walls, and a variety of other matters necessary for the general welfare, health, or commerce, and such by-laws are enforced by the sanction of penalties, and the breach of them constitutes an offence, and is a criminal matter ... and in such a case the substance of the enactment is that a man shall take care that the statutory direction is obeyed, and that if he fails to do so he does so at his peril.

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51 Brend v. Wood (1946) 62 TLR 462 at p.463. 52 Harding v. Price [1948] 1 KB 695 at p.701 (failure to inform police of collision), following Nicholls v. Hall (1873) LR 8 C P 322 at p.326, per Keating J. 53 Younghusband v. Luftig [1949] 2 KB 354 at p.370. 54 (1889) 23 QBD 168 at p.173.

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Alteration of the Existing Law It is part of the law and custom of Parliament that an Act may be altered, amended or repealed in the same session in which it was passed. This was reflected in s.10 of the Interpretation Act 1889.55 The principle is embedded in the assertion that Parliament as the legislative arm of government is the supreme legislative authority. Incidental to this is the power to change, modify or abrogate the law. Hence the principle that a present Parliament cannot fetter the hands of a subsequent Parliament. A provision in an Act of Parliament forbidding Parliament to amend that self-same Act would be void. Conformity with the Constitution The modern manifestation of this principle is found in the written constitutions of many countries of the world today. The Constitution is the fundamental law. It: • contains the principles upon which the government is established; • regulates the powers of the various authorities it establishes; • directs the persons or authorities who shall or may exercise certain powers; • determines the manner in which the powers it confers are to be confined or exercised; • specifies the limits to which powers are confined in order to protect individual rights and prevent the abusive exercise of arbitrary power. A constitution is the bedrock of constitutional government. It usually confers the legislative power of the state on a Legislature and then clothes that Legislature with the power to make laws for good order and good government. But, the Constitution remains the supreme law. Thus a law passed by the Legislature which is not in consonance with the spirit and the letter of the Constitution will be declared an unconstitutional law56 – to the extent of the contravention of, or inconsistency with, the Constitution. Hence Chief Justice John Marshall could say in Marbury v. Madison57: To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if these limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the __________________________________________________________________________________________________________________________________________

55 52 & 53 Vict c.63 And now see s.2 of the Interpretation Act, 1978, c.46. 56 Liyanage v. R [1967] 1 AC 259 PC; Ibralebe v. R [1964] AC 900. 57 1 Cranch 137, 2 L Ed 60 (1803).

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constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act... So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty.

In Marbury v. Madison, the Supreme Court of the United States concluded that ‘a legislative act contrary to the constitution is not law’. However, in the United Kingdom, where there is no written constitution as such, the exercise of the legislative sovereign power of Parliament cannot be so treated. An Act of Parliament not in harmony with the existing constitutional principles changes or abrogates the law. It thus nullifies the principle of unconstitutionality rather than the Act being nullified by virtue of the principle of constitutionality. So Lord Campbell could say that, all that a Court of Justice can do is to look at the Parliament roll: if from that it should appear that a Bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what passed in Parliament during its progress in its various stages through both Houses.58

In other words, the power to control or modify the constitution resides in the ordinary law-making powers of the Parliament of the United Kingdom. The declared will of the Parliament at Westminster is the final law – save, perhaps, the force of public opinion.59 But in jurisdictions with written constitutions, the will of the Legislature is subordinate to, and must be exercised in conformity with, the controlling instrument – the Constitution. That Constitution governs the Executive, the Legislature and the Judiciary as much as it governs the ordinary individual. But what is the impact of a written constitution on the ordinary law of the land where the Constitution, which is the supreme law, specifically saves what is often described as the existing law? The existing law might be inconsistent with, or in contravention of, the Constitution, particularly with respect to the provisions relating to Fundamental Human Rights and Freedoms of the __________________________________________________________________________________________________________________________________________

58 Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710 at p.725 But see City of London v. Wood (1701) 12 Mod 669 at p.687, where Holt CJ said that “if an Act of Parliament should ordain that the same person should be party and Judge, or, which is the same thing, Judge in his own cause, it would be a void Act of Parliament; for it is impossible that one should be Judge and party, for the Judge is to determine between party and party, or between Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd” See also Day v. Savage (1614) Hob 85 at p.87: “Even an Act of Parliament, made against natural equity, as to make a man a Judge in his own case, is void in it self”. 59 In the Thatcher years, people defied the Poll Tax, the political consequences of which contributed to the fall of the Prime Minister, Mrs Margaret Thatcher.

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Individual. Section 26 of the Constitution of Barbados60 provides for the saving of the existing law. It states that, (1) Nothing contained in or done under the authority of any written law shall be held to be inconsistent with or in contravention of any provision of sections 12 to 2361 to the extent that the law in question (a) is a law (in this section referred to as “an existing law”) that was enacted or made before 30th November, 1966,62 and has continued to be part of the law of Barbados at all times since that day; (b) repeals and re-enacts an existing law without alteration; or (c) alters an existing law and not thereby render that law inconsistent with any provision of sections 12 to 23 in a manner in which, or to an extent to which, it was not previously so inconsistent. (2) In subsection (1)(c) the reference to altering an existing law includes references to repealing it and re-enacting it with modifications or making different provisions in lieu thereof, and to modifying it; and in subsection (1) “written law” includes any instrument having the force of law, and in this subsection and subsection (1) references to the repeal and re-enactment of an existing law shall be construed accordingly.

It is obvious that at the time of independence there would be laws on the statute book which would be, or would become after the date of the independence, inconsistent with the Constitution. Thus s.4(1) of the Barbados Independence Order 196663 states that, Subject to the provisions of this section the existing laws shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Barbados Independence Act 1966,64 and this Order.

It must be emphasised that the Barbados Independence Act 1966 and the Barbados Independence Order 1966 should be read together. They form part of the constitutional order which gave independence to Barbados. In that context, the existing law comprises the written and the unwritten law; that is to say the statute law and the common law of Barbados are both saved. Thus in any interpretation or construction of s.4(1) by reliance on the literal rule of __________________________________________________________________________________________________________________________________________

60 The Schedule to the Barbados Independence Order, 1966, No. 1455 Other Constitutions have similar provisions. 61 That is, the Fundamental Human Rights and Freedoms of the individual provisions of the Constitution. 62 That is, the day on which Barbados became a sovereign, independent State. 63 1966 No. 1455. 64 1966 c.37.

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construction could produce unfortunate results and could work hardship against a person despite the detailed provisions of Chapter III on the Fundamental Human Rights and Freedoms of the Individual: ss 11 to 27. This was brought to light in Re Clarke.65 The Magistrates Jurisdiction and Procedure Act 195666 prevents a person from impeaching a conviction by a magistrate on the ground that the magistrate had no jurisdiction to convict, unless the objection to jurisdiction was taken at the trial. Section 24(3) of the Constitution provides that, should a question arise as to the contravention of a provision of Chapter III in proceedings before a court subordinate to the High Court, the person presiding at the subordinate court shall refer the question to the High Court unless, in his opinion, the raising of the question is merely frivolous and vexatious.

Robert Clarke sought certiorari to quash his conviction by a magistrate under the Public Order Act 1970.67 He argued that the magistrate should have referred the constitutional issue to the High Court on the ground that the Public Order Act violated his freedom of expression. The order for certiorari was refused. The reason was, amongst other things, that the 1956 Act as an existing law could not be held to be inconsistent with the provisions of the Constitution relating to Fundamental Human Rights and Freedoms of the Individual. Bearing in mind that s.24(3) uses the word shall, was it obligatory for the magistrate to refer the issue to the High Court, or can it be said that to allow the 1956 Act to prevail is to undermine s.24(3)? The issue really is whether it can be argued that the existing law and the common law guaranteed, in this respect, any rights of the individual prior to the coming into force of the Constitution. What is the approach of the courts? It would seem that the courts will not allow the existing law or the common law to be used as a cloak for wrong-doing. Nor will the courts, equally, allow the relevant provisions of the Constitution to be defeated merely by invoking the existing law or the common law. Practical necessity dictates the saving, in a written constitution, of the existing law. The absence of such a saving provision would create an intolerable vacuum. It would be chaotic. Since, however, the Constitution is the supreme law, its express provisions cannot be whittled away by reliance on the existing law which the Constitution has saved. The existing law and the common law including equity are saved within the spirit of the Constitution. Hence s.4(1) of the Independence Order, which provides for modifications, adaptations, qualifications and exceptions which are necessary to bring the

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65 17 WIR 49 (1971) Barbados. 66 Cap 116. 67 Cap 168A.

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existing law into conformity with the Constitution. South Africa and Zimbabwe provide some interesting examples. The Bophuthatswana Constitution Act 1977 68 provides in s.7(1) that for Bophuthatswana the Constitution shall be the supreme law. Chapter 2 provides for Fundamental Human Rights. Section 7(2) provides that, Any law passed after the date of coming into operation of the Constitution which is inconsistent with the provisions thereof, shall to the extent of such inconsistency, be void.

In S v. Marwane,69 it was argued before the Bophuthatswana Supreme Court that the South African Terrorism Act 196770 which was in conflict with the letter and the spirit of the Declaration of Fundamental Rights, is irreconcilable with the terms of the Constitution, and is in fact so radically opposed to it, that it can only continue to operate in Bophuthatswana in terms of a specific provision to that effect.

Hiemstra J rejected that argument. He said that s.7(2) of the Constitution is plain enough that only subsequent legislation was affected. Practically speaking, there was no other way of reconciling existing legislation with the declaration of Fundamental Rights. South African legislation continue to apply … and the (Bophuthatswana) Government proceeded to adapt it to their own needs as time and manpower allowed.

The Appellate Division71 rejected the reasoning of Hiemstra J. Millar JA, speaking for the court, noted that there was no doubt that provisions of the Terrorism Act conflicted with provisions of the Bophuthatswana Constitution. Under the Terrorism Act, the accused person bore the onus of proving beyond reasonable doubt the absence of certain essential elements of the offence. The Bophuthatswana Constitution provides in s.12(7) that everyone charged with a criminal offence shall be presumed innocent until proved guilty. Equally, the Terrorism Act provided that no court may pronounce on the validity of a detention or order the release of a detainee. Section 12(5) of the Bophuthatswana Constitution provides the opposite. Millar JA stated that, in respect of each of the ... points of conflict, the provision of the Constitution with which the Terrorism Act is in direct conflict appears in Chapter 2 of the Constitution – a chapter which is entitled “Declaration of Fundamental Rights”. The “fundamental rights” proclaimed in the chapter are said in s.8(1) to be “binding on the Legislature, the Executive and the Judiciary, and are directly enforceable by law”. The concluding section of Chapter 2 provided __________________________________________________________________________________________________________________________________________

68 No. 18 of 1977. 69 1981 (3) SA 588 at pp.589-90. 70 No. 83 of 1967. 71 1982 (3) SA 717 (AD) at p.745.

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that the “rights and freedoms” referred to in that chapter may be restricted only by Parliament (of Bophuthatswana) and that except in circumstances provided for in Chapter 2, a fundamental right and freedom shall not be totally abolished or in its essence be encroached upon …. The words “subject to the provisions of this Constitution” in s.93(1) of the Constitution clearly govern the provision that laws in operation immediately prior to the commencement of the Constitution are to continue in operation .... When the legislator wishes to convey that which is now being enacted is not to prevail in circumstances where it conflicts, or is consistent or incompatible with a specified other enactment, it very frequently, if not almost invariably, qualifies such enactment by the method of declaring it to be “subject to” the other specified one. As Megarry J observed in C & J Clark v. Inland Revenue Commissioners,72 “When there is no clash, the phrase ... ‘subject to’ ... does nothing; if there is collision, the phrase shows what is to prevail …”. The approach to interpretation of a Constitution, and more particularly one that contains a declaration of human rights and freedoms, has recently been discussed by Lord Wilberforce in Minister of Home Affairs & another v. Collins MacDonald Fisher & Another.73 After observing that such an act called for “a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to”, Lord Wilberforce went on to consider an argument that provisions in the Act subsequent to the declaration of fundamental rights should be construed as would any other Act of Parliament. To this argument he said that there were two possible answers: “The first would be to say that, recognising the status of the Constitution as, in effect, an Act of Parliament, there is room for interpreting it with less rigidity, and greater generosity, than other Acts .... The second would be more radical; it would be to treat a constitutional instrument such as this sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law …”. Of these two possible approaches it was the unanimous opinion of the Privy Council that the second was to be preferred, but the judgment went on to explain that this did not mean that no rules of interpretation should be applied when construing a Constitution; respect had still to be paid to the language used “and to the traditions and usages which have given meaning to that language”. But consistently with recognition of “rules of interpretation”, the Court interpreting a Constitution would also recognise “the character and origin of the instrument and be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences…”. __________________________________________________________________________________________________________________________________________

72 [1973] 2 All ER 513 at p.520. 73 [1980] AC 319 at pp.328-9.

Presumptions

… whether our courts were to regard an Act creative of a Constitution as it would any other statute, or as an Act sui generis, when construing a particular provision therein, they would give effect to the ordinarily accepted meaning and effect of the words used and would not deviate therefrom unless to give effect to the ordinary meaning would give rise to glaring absurdity; or unless there were indications in the Act – considered as a whole in its own peculiar setting and with due regard to its aims and objects – that the legislator did not intend the words to be understood in their ordinary sense. It appears to me, therefore, that, if the words in issue have a clear and generally accepted connotation and effect and there are no such indications as I have mentioned, the result would be the same whether the accepted principles of interpretation of statutes in our courts were applied or whichever of the possible approaches referred to in the judgment of the Privy Council were adopted …. … It was contended on behalf of [the] respondent that indications such as I have referred to were present and the ... argument in support thereof was that it was extremely unlikely, if not inconceivable, that the makers of the Constitution would take over the whole body of existing laws ... to cover the “transition period”, with the reservation that any of the laws so taken over could, when they were in issue, be challenged on the ground of conflict with the Constitution. Such a situation, it was contended, would result in uncertainty regarding the validity of any law. I do not find this argument to be convincing, or even persuasive. What it overlooks, or tends to give scant weight to, is that, whatever interpretation is given to s.93(1), uncertainty relating to the validity of laws is necessarily inherent in the terms of the Constitution. Section 7(2) provides that any law passed after the date of coming into operation of the Constitution, which is inconsistent with the provisions thereof, “shall to the extent of such inconsistency, be void”. For so long as this Constitution stands, the right to challenge the validity of legislation passed by the legislative authority will remain, as will the Supreme Court’s power – and its duty, when properly called upon so to do – to test the validity of the challenged legislation by reference to the provisions of the Constitution. This is usually a feature of systems in which a “Bill of Rights” is enshrined in a Constitution, to which very many cases decided in the United States of America bear irrefutable testimony …. There is no question here of repeal with retrospective effect; the conflicting law is excluded by s.93(1) from the body of existing law taken over by the new state …. I have ... in this judgment referred to the embarrassing and undesirable situation which the co-existence of conflicting provisions would bring about. That remains true whether such co-existence was of long or short duration. A simple example will suffice to demonstrate the sort of situation which I have no doubt the makers of the Constitution were concerned to avoid. A person taken into detention without trial in terms of the Terrorism Act, after 6 December 1977, in Bophuthatswana, might move the Court in terms of s.12(5) of the Constitution for an order that he be released on the ground that his detention was unlawful. If s.93(1) of the Constitution did not have the

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effect of rendering at least parts of the Terrorism Act inapplicable in Bophuthatswana, as being in conflict with the Constitution, the Court would be obliged ... to brush aside sections 7(1) and 12(5) of the Constitution and to refuse to entertain the applicant’s suit at all. The applicant would then be required to remain in detention, despite what might be called his “guaranteed” or “entrenched” constitutional rights, for such period of time as might be required to set in motion the legislative process for the repeal of the Terrorism Act or part thereof. Whether such time was short or long, the situation created by the continued applicability of laws in conflict with the Constitution would be conducive to dissatisfaction amongst citizens of the new State who, not without reason, would tend to regard as illusory the fundamental rights afforded them by the Constitution. Such a situation would be detrimental to the public interest …. The effect of continued applicability of “inherited” laws in conflict with the Constitution would be suspension, for an undefined period of time, of the provisions of the Constitution affected by such conflicts. I can find nothing in the Constitution Act to suggest an intention that the provisions … thereof ... should remain in suspense at all; on the contrary … the clear indications are that such provisions were forthwith to become operative …. I am, in all the circumstances, unable to construe the words “subject to the provisions of this Constitution” in the context of s.93(1) in any way other than that laws in conflict with the Constitution are to be excluded from the laws which in terms of that section are to continue in operation. Any other construction would, in my view, constitute an unjustifiable departure from their natural, ordinary meaning in the context of s.93(1) and in the context of the Constitution Act as a whole, and would defeat the purpose of their inclusion in the provisions of s.93(1) …. The result is that the Terrorism Act, in the respects in which it is in conflict with the provisions of the Constitution, is not applicable in Bophuthatswana and was not therefore applicable at the time of the alleged contravention by the appellant ... for it was, effectively, repealed by the Constitution to the extent of the conflict.’

In Minister of Home Affairs & others v. Dabengwa,74 the Zimbabwe Supreme Court decided that in so far as they conflicted with the Zimbabwe Constitution, the Emergency Powers (Maintenance of Order) Regulations prohibiting detainees from instructing and consulting with their legal advisers were invalid. The Supreme Court quoted with approval Lord Wilberforce’s statement in Minister of Home Affairs & another v. Collins.75 Telford Georges CJ also quoted with approval from that judgment in

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74 1982 (4) SA 301. 75 [1980] AC 319 (PC). 76 1984 (2) SA 778 (ZSC) at p.782.

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Zimbabwe Township Developers (Pvt) Ltd. v. Lou’s Shoes (Pvt) Ltd76 He observed that the presumption of constitutionality: is a phrase which appears to me to be pregnant with the possibilities of misunderstanding. Clearly a litigant who asserts that an Act of Parliament or a regulation is unconstitutional must show that it is. In such a case the judicial body charged with deciding that issue must interpret the Constitution and determine its meaning and thereafter interpret the challenged piece of legislation to arrive at a conclusion as to whether it falls within that meaning or does not. The challenged piece of legislation may, however, be capable of more than one meaning. If that is the position, then, if one possible interpretation falls within the meaning of the Constitution and others do not, then the judicial body will presume that the law makers intended to act constitutionally and uphold the piece of legislation so interpreted. This is one of the senses in which a presumption of constitutionality can be said to arise. One does not interpret the Constitution in a restricted manner in order to accommodate the challenged legislation. The Constitution must be properly interpreted, adopting the approach accepted above. Thereafter the challenged legislation is examined to discover whether it can be interpreted to fit into the framework of the Constitution… Even where the Constitution does not make it clear where the onus lies, as the Zimbabwe Constitution does, the onus lies on the challenger to prove that the legislation is not reasonably justifiable in a democratic state, and not on the state to show that it is. In that sense there is a presumption of constitutionality.

Minister of Home Affairs v. Bickle & others77 concerned s.16(8)(b) of the Zimbabwe Constitution. The section protected the individual against compulsory acquisition by the State of that individual’s property except in certain prescribed circumstances, including the property of the enemy. The word enemy was not defined in s.113, which is the interpretation section of the Constitution. Telford Georges CJ quoted with approval the words of Lord Wright in James v. The Commonwealth of Australia78: It is true that a Constitution must not be construed in any narrow and pedantic sense. The words used are necessarily general, and their full import and true meaning can often only be appreciated when considered, as the years go on, in relation to the vicissitudes of fact which from time to time emerge. It is not that the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of that meaning …. The task of the Court must be to interpret the Constitution, applying the normal canons, then to interpret the challenged legislation, and then to decide whether a meaning can fairly be placed on that legislation which enables it to fit within the already determined constitutional framework …. __________________________________________________________________________________________________________________________________________

77 1984 (2) SA 439 (ZSC). 78 [1936] AC 578 at p.614.

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Although the word [enemy] is not defined, its meaning does not appear to me to be in doubt on all the authorities to which we have been referred. Indeed, perhaps because of that, the need for definition did not arise. The word can only be used in situations where there is a state of war or armed conflict.

Accordingly, an order made under the Emergency Powers (Forfeiture of Enemy Property) Regulations 1981 was declared invalid, as the meaning of enemy in the Regulations did not accord with the limited meaning of that term in the constitutional guarantees, in that the Regulations purported to include situations not amounting to war or armed conflict. The conflict between the Constitution and the existing law as saved by the Constitution is yet again illustrated by the Jamaican case of DPP v. Nasralla.79 In that case the Common Law and the written law were considered as coextensive with the Constitution by virtue of the saving by the Constitution of the existing law, under a provision of the Constitution of Jamaica similar to the Barbados provisions reproduced above. The effect of the Nasralla Case is that (a) the provisions on the Fundamental Human Rights and Freedoms of the Individual (i) could only be relied on where the right invoked can be proved to be a right that existed immediately before the Constitution came into force; (ii) could not be relied on where the right invoked could not have been asserted but for the Constitution; (b) the existing law under the circumstances must be reasonably justifiable in terms of the spirit of the Constitution.

Conformity with the Case Law80 The relationship between Statute Law and Case Law is that case law pre-dates the statute law. Thus in R v. Morris81 Byles J said: It is a sound rule to construe a statute in conformity with the common law rather than against it, except where and so far as the statute is plainly intended to alter the course of the common law.

As such, an Act of Parliament (a) may alter the common law: Barber v. Pigden82; Handley v. Handley83; __________________________________________________________________________________________________________________________________________

79 [1967] 2 AC 238 (PC). 80 The term is used here to comprise both the Common Law and Equity. 81 [1867] LR 1 CCR 90 at p.95. 82 [1937] 1 KB 664 at p.677. 83 [1891] P 124 at p.127. 84 [1912] AC 305 at pp.309-311.

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(b) may exclude the operation of the common law: Leach v. R84; (c) may extend the application of the common law to cases not previously covered by the common law: Re Ludmore85; (d) may merge the common law with the statute law: New Windsor Corporation v. Taylor86;

The basic rule of construction, however, must be stated that where there is a conflict between the case law and the statute law, the statute law will prevail: Hammersmith Ry v. Brand.87 In all such cases the courts will not infer that a statute intended to alter the common law. The provisions of the Act must be in express terms: It is a well-established principle of construction that a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.88

Conformity with the Existing Law In Nokes v. Doncaster Amalgamated Collieries89 Lord Atkin applied the presumption that the Legislature does not, except in clear terms or by necessary implication, intend to make a substantial change in the existing law. In that case Lord Atkin decided that a statutory transfer of property did not include a contract of personal service. A person cannot be compelled against his or her will to serve a master. This principle Lord Atkin regarded as being so deep-seated in the common law that it can only be over-ruled by clear, definite or positive enactment.90 The test to be applied is the principle Romilly MR laid down in Minet v. Leman91: the general words of the Act are not to be so construed as to alter the previous policy of the law, unless no sense or meaning can be applied to those words consistently with the intention of preserving the existing policy untouched.

The Legislature, it has already been stated, has the power to modify, extend, alter or repeal an Act of Parliament. Therefore, as stated in Re

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85 (1884) 13 QBD 415. 86 [1899] AC 41. 87 (1869) 4 HL 171. 88 National Assistance Board v. Wilkinson [1952] 2 QB 648 (DC) per Devlin J. 89 [1940] AC 1014. 90 Ibid, at p.1033. 91 (1855) 20 Beav 269. 92 (1887) 36 ChD 573 at p.578.

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Williams,92 The provisions of an earlier Act may be revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to the particular point, or from implication or inference from the language used.

Express repeals do not pose a problem. An Act of Parliament may specifically provide that a particular Act or a provision of an Act is repealed. However, there are instances where the subsequent Act does not specifically repeal the earlier enactment, and questions do arise as to how much and to what extent in those circumstances the later enactment had repealed the earlier enactment. Fletcher Moulton LJ dealt with the issue in respect of the Copyright Act 1842.93 This what he said in Macmillan v. Dent94: The Act of 1842 did two things. It established a new copyright law and wiped out all the old statutes relating to copyrights. For the sake of clearness I will use the phrase “it had an enacting part and it had a repealing part”. The enacting part must have full force given to it whatever be the pre-existing statutes. If those provisions are contrary to those of the Act of Anne, these provisions being in a later Act override and pro tanto extinguish the provisions of the earlier Act. But apart from this, the repealing part wiped these earlier Acts off the statute book. The consequence of this would have been that all the rights which had been created under them and had not expired would have been wiped out. The enabling part of the Act of 1842 applies only to books published after that date, but if the preceding statutes had been wiped out simpliciter, all the books published before that date which were then in the enjoyment of copyright would have lost their privilege.

In his view, however, that was not the intention and thus s.1 of the 1842 Act preserved the older Acts so far as was needed to secure rights already acquired under the earlier Acts that had not then expired. Express repeal is now effected (a) by means of a Schedule which would specify the enactments to be repealed, and the extent of the repeal; (b) by Statute Law Revision, in which exercise any doubts about inconsistency of enactments are dealt with; (c) by consolidation, where the enactments incorporated in the consolidation are specifically repealed; (d) by codification, in which, like consolidation, the enactments incorporated in the codification are specifically repealed.

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93 5 & 6 Vict c.45. 94 [1907] 1 Ch 107 at p.124.

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As has been noted, the effect of a repeal is that the enactment repealed is completely obliterated – as if it had never been enacted. Now, Interpretation Acts provide that, unless a contrary intention is expressed, the repeal of an Act of Parliament does not (a) revive an enactment or anything not in force or existing at the time when the repeal takes effect; (b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder; (c) affect a right, a privilege, an obligation or a liability acquired, accrued, accruing or incurred under the enactment so repealed; (d) affect an offence committed against or a violation of a provision of the enactment so repealed, or a penalty, a forfeiture or a punishment incurred under the enactment so repealed; or (e) affect an investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed. There is also a presumption – the principle of implied repeal – that where two Acts are inconsistent with each other the later is construed as having repealed the earlier Act by necessary implication.95 The later Act is the latest expression of the will of Parliament and the latest will prevails.96 The Jurisdiction of the Courts The Judiciary is a vital and an indispensable component in constitutional government. Its integrity and independence ensure the democratic operation of constitutional government. The struggle to assert and, then, maintain the independence of the Judiciary had been concomitant with the fight to establish the liberty of the subject. Its success against despotism culminated in the Act of Settlement 1700.97 It has stood as the custodian – and the bastion – of the liberty and the dignity of the individual. As Lord Hewart, Lord Chief Justice, put it in The New Despotism, When, for any reason or combination of reasons, it has happened that there has been lack of courage on the Judicial Bench, the enemies of equality before

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95 Paine v. Slater (1883) 11 QBD 120. 96 White v. Islington Corporation [1909] 1 KB 133; Ellen Estates v. Minster of Health [1934] 1 KB 590; British Columbia Electric Ry v. Stewart [1913] AC 816. 97 12 & 13 Will 3 c.2.

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the law have succeeded, and the administration of the law has been brought into disrepute.

Independent of statute, the courts have at common law exercised the power of review of administrative authority. With a written constitution, the jurisdiction of the courts becomes peculiarly essential. The limitations imposed by the constitution on persons and the various authorities it establishes can only be preserved through the medium of the courts of justice. Without that power, all constitutional guarantees fade into nothingness. The interpretation and the construction of the laws, be they written or unwritten, must of necessity be the peculiar province, ultimately, of the courts. All this is now well recognised in all modern constitutions. The Judiciary is the ultimate arbiter in which is vested the judicial power of the State. It ensures the crucial balance between the State and the individual, between one individual and another. We may well recall the words of Abraham Lincoln98: I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the Court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.

Judicial Review – The Supervisory Role Marbury v. Madison99 established the principle of judicial review. Chief Justice John Marshall asserted that, The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives injury. __________________________________________________________________________________________________________________________________________

98 Inaugural Address in 1861, S Richardson, Messages and Papers of Presidents (1900). 99 1 Cranch 137, 2 L Ed 60 (1803).

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One of the first duties of government is to afford that protection ....

He emphasised that a government should be a government of laws, and not of men … [and] where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy...[for the] original and supreme will organises the government, and assigns to different departments their respective powers ... [therefore it] is emphatically the province and duty of the judicial department to say what the law is.

It is not for some official, minor or major, to say what the law is. Thus in Campbell’s Trustees v. Police Commissioners of Leith,100 Lord Hatherley said The courts will hold a strict hand over those to whom the legislature has entrusted large powers, and take care that no injury is done by extravagant assertion of them.

The main grounds upon which the courts will now interfere to assert their supervisory role are (a) improper motives, including mala fides, in the exercise of a power; (b) that the powers are exercised (i) in an arbitrary manner, or (ii) capriciously; and (c) that the powers exercised are ultra vires the enabling power.

The due processes of the law by which this interference is now exercised is by way of the issue of orders of certiorari, mandamus, prohibition and quo warranto. Certiorari This is an order – formerly a prerogative writ – of common law origin. It is issued from a superior court to an inferior court requiring the inferior court to produce a record to be certified, that is to say, the proceedings before the inferior court would be examined to determine whether there has been an irregularity. It was first issued in the seventeenth century to control statutory powers when proceedings were brought before the King’s Bench. If there was an error on the face of the record the decision was quashed. Now the remedy is available in cases where there is excess of jurisdiction, want of jurisdiction, abuse of power and the exercise of powers which are ultra vires. Certiorari, in the sense of a review of the record of an inferior __________________________________________________________________________________________________________________________________________

100 (1870) LR 2 HL (Sc) 1 at p.3. 101 Walsall Overseers v. London & North Western Railway (1878) 4 App. Cas. 30.

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court, was thus originally a method of exercising judicial control. Evolution of the process has led to its use as a supervisory weapon over the decisions of tribunals and administrative authorities. 101 In R v. Northumberland Compensation Appeal Tribunal ex p. Shaw,102 Denning LJ said: ‘We have here a simple case of error of law by a tribunal, an error which they frankly acknowledge. It is an error which deprives Mr Shaw of the compensation to which he is by law entitled. So long as that erroneous decision stands, the compensating authority dare not pay Mr Shaw the money to which he is entitled lest the auditor should surcharge them. It would be quite intolerable if in such a case there were no means of correcting the error.103

Mandamus This order – originally a prerogative writ104 – is a command. Indeed, it translates directly as ‘we command’. It issues from a superior court directed to an inferior authority, whether private or municipal, administrative, executive or judicial that a legal duty be done.105 But mandamus will not be granted where there exists any other remedy which is swift, beneficial and effectual. It is a wide discretionary power in the hands of the courts – and the judges jealously guard the exercise of that power. Prohibition Prohibition is like certiorari. It is used to prevent an inferior court or tribunal from exceeding its judicial or quasi-judicial powers or, indeed, from taking cognisance of matters not within its jurisdiction to hear or to determine. It is, though, prospective in character, not retrospective as in the case of certiorari. Lord Atkin, in R v. Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd.,106 said that he could see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters __________________________________________________________________________________________________________________________________________

102 [1952] 1 KB 338 at p.354. 103 See also R v. Logan ex p. McAllister [1974] 4 DLR 676; John East Ironworks v. Labour Relations Board of Saskatchewan [1949] 3 DLR 51. 104 The prerogative writs of mandamus, prohibition and certiorari were abolished by the Administration of Justice (Miscellaneous Provisions) Act, 1938, s.7 of which provides for orders of mandamus, prohibition or certiorari. 105 Re Nathan (1884) 12 QBD 461; Stepney Borough Council v. John Walker & Sons Ltd. [1934] AC 365. 106 [1924] 1 KB 171 at p.206.

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which would result in its final decision being subject to being brought up and quashed on certiorari ... prohibition will lie to restrain it from so exceeding its jurisdiction.

And in R v. Greater London Council ex p. Blackburn,107 Lord Denning MR said that prohibition is available to prohibit administrative authorities from exceeding their powers or misusing them. In particular, it can prohibit a licensing authority from making rules or granting licences which permit conduct which is contrary to law.

Quo warranto This order was originally a prerogative writ in common law issued to test the legality of the exercise of a power – ‘by what authority is the power exercised?’ It is intended to prevent the exercise of a power not conferred by law. It is not used to regulate the manner of the exercise of a power lawfully conferred. It is now an injunction used to prevent the usurpation of a public office. Ousting the Jurisdiction of the Courts Legislation has, occasionally, provided that, the determination by the Minister of an application made to the Minister under this Act shall not be called in question in a court of law.

This type of provision is normally referred to as an ouster clause – it is intended to oust the jurisdiction of the courts. To a layman, a power of this kind would seem to deprive the courts of jurisdiction over the Minister or any other person or authority exercising an administrative or a judicial function. The courts do not think so. The House of Lords has held in Anisminic Ltd. v. Foreign Compensation Commission 108 that s.4(4) of the Foreign Compensation Act 1950,109 which provided that the determination by the Commission of an application shall not be called in question in a court of law, did not protect any such determination from the jurisdiction of the courts. The effect of Anisminic is that a provision of an Act of Parliament which directly or indirectly protects a particular act or thing from the jurisdiction of the Courts or manifests an insulation of that act or thing from interference by the Courts will not be countenanced by the courts in respect of a remedy that the Courts feel they are in a position to give. __________________________________________________________________________________________________________________________________________

107 [1967] 1 WLR 550 at p.559. 108 [1969] 2 AC. 109 14 Geo 6 Ch 12. 110 (1670) 1 Mod 44. 111 (1686) 3 Mod 94.

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Ouster clauses have a long history. R v. Smith110 and R v. Plowright111 appear to be the earliest of the cases which deal with them. R v. Smith involved the interpretation of a provision of the Ecclesiastical Leases Act 1571.112 Under that Act, a commissioner of sewer was not liable to make a return for his actions. Some commissioners disobeyed writs of certiorari issued from the King’s Bench to stop them rating land outside their jurisdiction and were duly imprisoned for contempt. The courts would not tolerate the exercise of a jurisdiction that was not subject to their control. In R v. Plowright, statute imposed a tax on chimneys, and empowered the Justices of the Peace, in a case of a dispute, ‘to hear and finally determine the matter’. On an application for a writ of certiorari the court held that the absence in the statute of a reference to certiorari did not mean that the remedy by way of certiorari had been excluded. The courts have been consistent in their dislike of attempts by the Legislature to oust or curtail their jurisdiction.113 Lord Campbell CJ attributed the origin of this dislike to the contest for fees in the early common law.114 In the eighteenth and early nineteenth centuries, the courts were active in their use of the prerogative writ of certiorari. Indeed, the proliferation of tribunals in England after the Second World War led to the growth of the ouster clause, which was used by Parliament to prevent the High Court from interfering with the decisions of tribunals.115 The culmination of the determination of the courts to override ouster clauses came with an obiter dictum of Lord Denning in Taylor v. National Assistance Board116: The remedy is not excluded by the fact that the determination of the Board is by statute made “final”. Parliament gives the impress of finality to the decisions of the Board only on the condition that they are reached in accordance with the law; and the Queen’s courts can issue a declaration to see that condition is fulfilled.

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112 13 Eliz Ch 10. 113 See R v. Morely (1760) 2 Burr 1040; Shipman v. Henbest (1790) 4 Term Rep 109; Balfour v. Malcol (1842) 8 Cl & Fin 485; Smith v. Brown (1871) LR 6 QB 729; Oram v. Breary (1877) 2 Ex D 346; Seaward v. The Vera Cruz (Owner), The Vera Cruz (1884) 10 App Cas 59; Payne v. Hogg (1900) 2 QB 43; Morris v. Loughborough Corporation (1908) 1 KB 205; Attorney-General v. Boden [1912] 1 KB 539; Re Vexatious Actions Act, 1896 [1915] 1 KB 21; R v. Nat Bell Liquors [1922] 2 AC 128; Goldsake v. Shore [1950] 1 KB 708; Francis v. Yiewsley and West Drayton Urban District Council [1957] 2 QB 136. 114 Scott v. Avery (1856) 5 HL Cas 811. 115 Dr Albert K Fiadjoe, Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review in Commonwealth Caribbean Public Law: Commonwealth Caribbean Legal Studies, Ed G Kodilinye & PK Menon, p.161. 116 [1957] AC 101 at p.111, affirmed in [1958] AC 532.

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Classification Ouster clauses may be classified under three heads: • constitutional ouster clauses; • statutory ouster clauses; • non-statutory ouster clauses. A constitutional ouster clause is usually found in modern written constitutions, where a provision of the constitution would aim at ousting or restraining the jurisdiction of the courts on certain matters. When a statute ousts or restrains the jurisdiction of the courts in respect of certain matters the ouster is referred to as a statutory ouster clause. Apart from constitutions or statutes, an agreement, a treaty or the rules of a voluntary organisation may contain clauses that may be termed non-statutory ouster clauses. In considering a non-statutory ouster clause a contract was held to be illegal on the ground of public policy, in so far as its terms forbade the parties to seek remedy in a court of law.117 Agreements which provide for the submission of disputes to arbitration form an exception to this rule. Czarnikov v. Roth, Schmidt & Co118 is authority for the proposition that the parties to an agreement cannot wholly exclude access to the courts by making the decision of an arbitration final. In Baker v. Jones,119 the court held that a provision in the rules of a voluntary association making its governing council the sole and ultimate arbiter on the legal construction of the rules of the association was contrary to public policy and thus void. Where a testator made a will incorporating an ouster clause, it was held that a testator cannot wholly deprive the courts of their jurisdiction to construe the terms of a will.120 Ouster clauses may take different forms. Attaching finality to the decisions of an administrative authority was the first formula used by Parliamentary Counsel to provide for the ouster clause. It has been extended to exclude certiorari, and other formulae: ‘shall not be questioned’ clauses, time-limit clauses, conclusive evidence clauses, ‘as if enacted in this Act’ clauses, Henry VIII clauses, ‘if satisfied’ clauses, and exclusive jurisdiction or exclusive remedy clauses. Final Decisions __________________________________________________________________________________________________________________________________________

117 Bennett v. Bennett [1952] 1 KB 249. 118 [1922] 2 KB 478. 119 (1954) 1 WLR 1005; and see also Walton v. Holland (1963) NZLR 729. 120 Re Raven [1915] Ch 673; Dundee General Hospital v. Walker [1952] 1 All ER (HL) 896. 121 (1760) 2 Burr 1040.

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In R v. Morely121 it was held that provision which provided that a decision shall be final excluded only appeals and was thus not applicable to certiorari. In Fraser v. City of Fraserville122 it was held that in making, under a statute, the award of an arbitrator final and without appeal, the findings of fact of the arbitrator were not free from challenge if there had been an excess of jurisdiction, such as by assessing the value of the wrong thing. Section 36(3) of the National Insurance (Industrial Injuries) Act, 1946123 provided that ‘... any decision on a claim or question ... shall be final …’ This section was considered in R v. Medical Appeal Tribunal ex p. Gilmore.124 The applicant, a colliery pick sharpener, sustained an injury to his good eye while at work. The applicant claimed for a disablement benefit under the Act. The final medical board made no award. The applicant then appealed to a medical tribunal which, in making its award, assessed the injury at only 20%. The Divisional Court refused leave to apply for certiorari, so the applicant then moved the Court of Appeal which granted the request. Denning LJ said: The word “final” is not enough. That only means “without appeal”. It does not mean “without recourse to certiorari”. It makes the decision final on the facts but not on the law. Notwithstanding that the decision is by statute made “final”, certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.125

In Pearlman v. Keepers and Governors of Harrow School,126 the words ‘such determination shall be final and conclusive’ were considered. Lord Denning MR said that the words “final and conclusive” have been considered by the courts a hundred times. It has been uniformly held that they preclude any appeal to a higher court .... But those words do not preclude the High Court from correcting the errors of the lower tribunal by means of certiorari – now called judicial review. Notwithstanding that a decision is by a statute made “final and conclusive”, certiorari can still issue for excess of jurisdiction or for error of law on the face of the record ... or a declaration can be made by the High Court to determine the right of the parties.127

In Jones v. Department of Employment128 the words ‘shall be final’ were again considered. Glidewell L.J. observed in an obiter dictum129 that if the __________________________________________________________________________________________________________________________________________

122 [1917] 34 DLR 211. 123 9 & 10 Geo 6 Ch 62. 124 [1957] 1 QB 574. 125 At p.583. 126 [1979] QB 56. 127 At p.68. 128 [1988] 2 WLR 493; [1989] 1 QB 1. 129 At p.19.

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decision-making process is flawed, as shown by error of law on the face of the record, certiorari would issue to quash the decision. In South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union & Others130 the court was faced with the interpretation of s.29(3)(a) of the Industrial Relations Act, 1967.131 The section provided that, an award of the [Industrial] Court shall be final and conclusive, and no award shall be challenged, appealed against, reviewed, quashed or called in question in any court of law.

An application was made by the company to the High Court for an order of certiorari to quash the award made by the Industrial Court. The ground of the application was that there were errors of law on the face of the record. The High Court held that the words of s.29(3)(a) were wide enough to oust the jurisdiction of the High Court to review the decisions by certiorari, but that the provision would not exclude the jurisdiction of the High Court if the Industrial Court had exceeded its jurisdiction. Accordingly, there was power to grant certiorari for an error of law on the face of the record of the award which did not affect the jurisdiction of the Industrial Court. However, since the application was based on errors of law on the face of the award, the High Court had no jurisdiction to grant an order for certiorari, because there were no such errors. In R v. Coldham ex p. Australian Union132 the court held that s.60(1) of the Conciliation and Arbitration Act 1904 did not operate to confer any conclusive or quasi-conclusive character on the Commission’s finding on preliminary questions. In Griffith v. Barbados Cricket Association,133 it was held by the Judicial Committee of the Privy Council that s.6 of Act No. 12 of 1933[B], which had provided that ‘... the decision ... made shall be binding and conclusive on all the parties without appeal’ could not exclude the jurisdiction of the court where an allegation of a breach of natural justice had been made. No Certiorari An Act of Parliament may provide that, ‘No proceedings touching the conviction of an offender against this Act shall be removed by certiorari’.134 In R v. Wood135 there was a conviction under a by-law issued under the Public __________________________________________________________________________________________________________________________________________

130 [1981] AC 363. 131 No.35 of 1967 (Malaysia). 132 (1983) 49 ALR 259. 133 (1989) 41 WIR 48. 134 Taken from s.137 of the Public Health Act of Canada. 135 (1855) 5 E & B 49; 119 ER 400. 136 11 & 12 Vict c.63.

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Health Act 1848.136 As a defence the validity of the by-law had been challenged but the magistrate had refused to inquire into the challenge. On an application for certiorari, the appellate court held that since the magistrate had refused to hear the defence, the accused had been denied jurisdiction. The writ of certiorari was granted. Under the Public Health Act 1848, the right to certiorari is expressly taken away by statute, but the courts would have none of that; they would rely on a restrictive interpretation, or upon the proposition that Parliament could not have intended that a tribunal with limited jurisdiction should have the right to exceed its authority without the possibility of direct supervision by the appropriate higher court. Thus the courts have persistently declined to apply the rule of literal interpretation in the circumstances. The position then is this: that certiorari would be issued notwithstanding the presence of words taking away the right to apply for it. The grounds for the interference by the courts are that (a)

the inferior tribunal (i) was improperly constituted, as where some of the members of the tribunal had interests which should have been disclosed137; (ii) lacked or exceeded its jurisdiction because of the nature of the subjectmatter or the failure to observe the essential preliminaries138; (iii)had deviated from the prescribed procedure139;

(b) the act in question is an infringement of a rule of natural justice140; (c) there is a total absence of jurisdiction.141

The early leading case on certiorari is Colonial Bank of Australia & Other v. William.142 That case laid down the proposition that the effect of a ‘no certiorari’ clause is not to oust entirely the powers of the superior court to issue certiorari. If a party makes a fraudulent use of the processes of a court, and no remedy is to be had in that court, the parties aggrieved may obtain relief by regular suit in the appropriate competent court. In R v. Medical Appeal Tribunal ex p. Gilmore143 the Court of Appeal considered the finality and no certiorari clauses. Referring to the no certiorari clause, Denning LJ observed: __________________________________________________________________________________________________________________________________________

137 R v. Cheltenham Commissioners (1841) 1 QBD 467. 138 R v. Hurst ex p. Simth [1960] 2 QB 133. 139 R v. Chairman of General Sessions at Hamilton ex p. Atterby (1959) W W R 800 at p.806. 140 Ridge v. Baldwin [1964] AC 40. 141 Ex p. Bradlaugh [1878] 3 QB 509. 142 (1874) LR 5 PC 417 at p.442. 143 [1957] 1 QB 574.

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I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words.

It is submitted that even clear and explicit words are not enough to oust the jurisdiction of the courts. In Anisminic v. Foreign Compensation144 the House of Lords stated: Mandamus, prohibition, certiorari and habeas corpus are all writs which will be granted where what the inferior tribunal has done is a nullity …. The root principle is that if the order, decision or determination is not a determination at all, it is not within the Act and there is nothing on which the ouster clause can bite.

Shall not be questioned Anisminic Ltd. v. Foreign Compensation Commission145 laid to rest the use in an Act of Parliament of the expression shall not be questioned in a court of law. In that case the Foreign Compensation Act 1950146 provided in s.4(4) that a determination by the Commissioners shall not be called in question in any court of law. The dispute arose from an agreement between the Government of Egypt and the government of the United Kingdom that a sum of money be paid by the Government of Egypt to provide compensation for the benefit of British companies and of persons whose property had been lost or damaged in the 1956 Suez incident, and subsequent expropriations of British property by the Government of Egypt. The United Kingdom Government entrusted the distribution of the compensation to the Foreign Compensation Commission. The statutory instrument defining the powers of the Commission in relation to applications arising out of the Suez incident contained provisions, complicated and obscure, as to the nationality of applicants for compensation. The object was to ensure that only those of British nationality received compensation, be they the original owners of the property lost or damaged, or their successors in title. Anisminic Ltd. was a British company but its property had been first sequestrated and then sold to an Egyptian organisation. The Commission interpreted the statutory instrument defining applicants for compensation as excluding Anisminic because their successor in title was of Egyptian nationality. The House of Lords held that the Commission had misconstrued the instrument because where the original owner of the property claimed that he was British, the nationality of his successor in title was irrelevant. __________________________________________________________________________________________________________________________________________

144 [1969] 2 AC 147 at pp.164-165. 145 [1969] 2 AC 147. 146 14 Geo 6 Ch 12.

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The Commission had considered a matter totally irrelevant to the questions which they had been granted jurisdiction to determine. Accordingly they had exceeded their jurisdiction and their purported determination was not valid. As such it was not protected by the provision preventing a proper determination of the Commission being questioned in the courts. Anisminic established the basic principle that if an authority or tribunal exceeds its jurisdiction then its decision is regarded by the courts as invalid and beyond the protection of any exclusionary formula previously used by Parliamentary Counsel. In Attorney-General v. Ryan the Privy Council held that a Minister’s refusal of an application for citizenship without a fair hearing could be challenged notwithstanding a provision that such a decision shall not be subject to appeal or review in a court of law. In R v. Miall,147 s.41(3) of the Criminal Justice Act 1988 148 was in question. The section provided that a magistrate court’s decision to commit a defendant for trial under s.41(1) of the Act ‘… shall not be subject to appeal or liable to be questioned in any court’. It was held that these words did not prevent the quashing of a criminal order which went beyond the powers conferred by s.41(1). Tudor Evans J said149: We interpreted the language of sub-section (3) as meaning that a lawful decision by a Magistrates’ Court cannot be subject to appeal or questioned, but that, where the court has reached a decision for which there is no legal basis whatsoever and has therefore acted in excess of jurisdiction, then … the decision is a nullity and an application lies to quash the decision to commit.

Time limit clause The form of this type of ouster clause may be as follows: (3) Where a person aggrieved by an order desires to question its validity on the ground that the order is not within the powers of this Act or that a requirement of this Act has not been complied with, that person may, within six weeks after the publication of the notice of confirmation, make an application to the High Court …. (4) … an order shall not, either before or after its confirmation be questioned by prohibition, or certiorari or in any legal proceedings, and shall become operative on the expiration of six weeks from the date on which notice of its confirmation is published ….

It appears that if the application is made to the High Court within six weeks, the normal rights of appeal to the higher courts may be exercised __________________________________________________________________________________________________________________________________________

147 [1992] 3 All ER 153 at p.158. 148 C33. 149 At p.158. 150 See (1975) 38 MLR 274 (J Alder).

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without restriction as to time. But this statutory formula has generated many problems150 of which three in particular stand out: (a) is the judicial review absolutely cut off after six weeks? (b) what is the scope of the review if the action is duly brought within the six weeks? (c) what is the meaning of ‘a person aggrieved’?

Before Anisminic, the authorities held that after the expiry of the specified period judicial review of the validity of the order was absolutely cut off. In Smith v. East Elloe Rural District Council,151 it was alleged that a local authority had taken land for housing under a compulsory purchase order made wrongfully and in bad faith. The House of Lords refused to allow the action to proceed since it was brought outside of the specified period, that is, more than six weeks after publication of the notice of confirmation. Viscount Simonds said that anyone bred in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some other tribunal …. ... two things may, I think, fairly be said. First, if the validity of such an order is open to challenge at any time within the period allowed by the ordinary Statute of Limitations with the consequence that it and all that has been done under it over a period of many years may be set aside, it is not perhaps unreasonable that Parliament should have thought fit to impose an absolute bar to proceedings even at the risk of some injustice to individuals. Secondly, the injustice may not be so great as might appear. For the bad faith or fraud on which an aggrieved person relies is that of individuals, and this very case shows that, even if the validity of the order cannot be questioned and he cannot recover the land that has been taken from him, yet he may have a remedy in damages against those individuals.152

East Elloe was distinguished in Anisminic. Lord Reid did not regard the former case (in which he had dissented) as very satisfactory. It was not certain, he said, whether the plaintiff was claiming that the authority which made the order had itself acted in bad faith, in which case the order would be a nullity; or whether the plaintiff was alleging that the clerk had fraudulently misled the Council and the Ministry, in which case the result would be different. East Elloe was considered by Lord Reid and Lord Pearce as not a binding authority and Lord Wilberforce said that he could not regard it as a reliable solvent of a similar case. The House of Lords did not suggest that there was a __________________________________________________________________________________________________________________________________________

151 [1956] AC 736. 152 At pp.750, 752.

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fundamental difference between an absolute ouster clause and an ouster clause which operated only after a prescribed period; if anything they tended to emphasise their similarity. The question therefore is whether an order protected by a time limit ouster clause can be challenged in proceedings brought after the expiry of the time limit on any grounds which would render it ultra vires, such as bad faith, wrong grounds or a violation of a rule of natural justice, in accordance with the principles of Anisminic. It may be argued that public authorities would be in an impossible position if compulsory purchase orders, housing orders, planning orders and similar orders were exposed to invalidation by the courts after public money had been invested in, say, building on land compulsorily acquired. It may be further argued that there is a clear distinction between a complete ouster clause and a time limit ouster clause. The latter might well be regarded not as ousting the jurisdiction of the courts but merely confining the time limit within which it can be invoked. Also, these time limit clauses may be considered as being analogous to limitation of actions. There is no judicial criticism of statutes of limitation where after a certain period of time a claim is time-barred and the jurisdiction of the courts to entertain a suit is ousted; and their effect is exactly akin to that of an ouster clause. On this basis East Elloe and Anisminic can be reconciled. The time limit ouster clause again came in issue in R v. Secretary of State for the Environment, ex p. Ostler 153 in which the Court of Appeal distinguished Anisminic from East Elloe and applied the decision in East Elloe. The details of the case were that a breach of natural justice and bad faith were alleged in a case of a compulsory purchase order for a trunk road scheme, under which much work had already been done, but which the complainant had not challenged within six weeks because he had not known of the supplementary plans which would affect his property. Lord Denning MR expressly mentioned the analogy with a limitation period and pointed also to the public interest in imposing finality where action had already been taken under the disputed orders. The House of Lords refused leave to appeal. In R v. Cornwall County Council, ex p. Huntington,154 paragraph 12 of Schedule 15 of the Wildlife and Countryside Act, 1981,155 was in issue. That paragraph provided, inter alia, that, if any person is aggrieved by an order … he may within 42 days … make an application to the High Court … Except as provided by this paragraph, the validity of an order shall not be questioned in any legal proceedings __________________________________________________________________________________________________________________________________________

153 [1977] QB 122. 154 [1992] 3 All ER 566. 155 C.69.

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whatsoever.

It was held that where a statute contained a standard form of preclusive clause proscribing an opportunity for challenge on specified grounds together with the period within which that challenge could be made and proscribing a challenge outside that period, questions as to the invalidity of action taken under that statute could only be raised on the specified grounds in the prescribed time and manner. The jurisdiction of the court was excluded in the interest of certainty in respect of any other challenge irrespective of whether the body whose decision was sought to be impugned was quasi-judicial or administrative and whether or not the decision sought to be impugned was fundamentally invalid. It followed that the court had no jurisdiction to grant judicial review of a right of way order and the grant of leave to apply for judicial review would accordingly be set aside. East Elloe and ex p. Ostler were applied. But is the decision in ex p. Huntington correct? The facts of East Elloe and ex p. Ostler were different from the facts of Huntington; here, lack of jurisdiction and fundamental invalidity were in issue. It could be argued that when an order is made without jurisdiction, it is not tenable in law, but it should not be argued that Parliament had the intention of protecting an invalid order after the lapse of the prescribed time. In the instant case, the applicant was waiting for a local inquiry and the time lapsed. Was the applicant at fault? Should not the court have made an adjudication on the allegations made by the applicant? Conclusive evidence clause Section 98(2) of the Companies Act 1948156 provided that a certificate given by a Registrar for the registration of a charge in pursuance of that Act, stating the amount thereby secured, was ‘conclusive evidence’ as to the compliance with the requirements of the Act. In R v. Registrar of Companies, ex p. Central Bank of India,157 it was held that the section precluded the court from considering evidence to show that the requirements as to registration had not been complied with. But the European Court of Justice in Johnson v. Chief Constable of the Royal Ulster Constabulary158 held that making a certificate conclusive evidence is unlawful. It does appear that, on the authority of these cases, a challenge which does not depend on evidence relating to the correctness of the certificates will not be excluded. Where a certificate is obtained by forgery, challenges would be __________________________________________________________________________________________________________________________________________

156 11 & 12 Geo 6 Ch 38. 157 [1986] 1 QB 1114. 158 [1987] QB 129. 159 [1990] 96 ALR 251.

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available – a forged certificate is a nullity. In Sharpe v. Goodhew159 it was held that the conclusive evidence provisions in a 1916 Australia Act could not give power to an officer to validate anything which was void ab initio. As enacted in this Act There have been instances where an enabling Act has provided that subordinate legislation made thereunder has effect as if enacted in this Act. The intention would appear to be to make such subordinate legislation immune from review in the same way as the parent legislation is immune from review. In Institute of Patent Agents v. Lockwood,160 a majority of the House of Lords held that the provision made the Regulations unquestionable by a court of law as if they were actually incorporated in the Act. But in 1931, the House of Lords found a more reasonable solution in a case under the Housing Act 1925,161 Minister of Health v. ex p. Yaffe.162 Here the Minister of Health had power to confirm a housing scheme and the Act had provided that the order when made shall have effect as if enacted in this Act. It was held that the Minister was empowered to confirm only schemes which conformed to the Act; if the scheme itself conflicted with the Act, the order was not an order within the meaning of the Act, and was not saved by the clause.

Yaffe was followed by the Manitoba Court of Appeal in MacCharles v. Jones.163 In the latter case the Court questioned the validity of rules that were declared by the legislature to have effect as if embodied in and as part of the Act under which they were made. Until the later part of the nineteenth century, it was not unusual for an Act of Parliament to provide that Regulations made under the Act would have the same effect as if enacted in the Act. A statute of that nature would confer authority to make Regulations, but might not expressly confer authority to prescribe penalties for breach of a regulation. The statute itself would prescribe a penalty but only for breach of a provision of the Act. The provision that the Regulations should have the same force and effect as if enacted in this Act was regarded as incorporating the Regulations into the Act for the purpose of making the penalty section applicable to a breach of the Regulations. Henry VIII clause

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160 [1804] AC 347. 161 15 Geo 5 Ch 14. 162 [1931] AC 494. 163 (1939) 1 WLR 133.

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Parliament may delegate to a subordinate authority a power to amend an Act of Parliament. This is not desirable but it has been done and still could be done. The clause by which it originated was referred to as the ‘Henry VIII clause’ – because ‘that king is regarded popularly as the impersonation of executive autocracy’.164 The object was to assist in bringing a new Act into effect, particularly in cases where previous legislation had been complicated, or where there might be local Acts of Parliament which had to be harmonised. Examples are to be found in many Acts.165 A Henry VIII clause was considered by the House of Lords in the Institute of Patent Agents v. Lockwood.166 It was held that the courts would not interfere to scrutinise the validity of a scheme made under a wide statutory provision. It is submitted that if the modification or amendment affected is beyond the intention of the legislature, the door would be open to judicial review on a purely jurisdictional ground. This type of provision is now used to amend the Schedule to an Act and would not be used to achieve a substantive amendment of the law. Subjective formulae – if the Minister is satisfied In delegating statutory powers, an Act of Parliament may provide that the Minister or the relevant authority may perform a certain function if the Minister is satisfied ... or if it appears to the Minister so to do … The intention is to make the Minister or the relevant authority the sole judge of the existence of the conditions which make the power exercisable. It had been argued that in such a case instead of judging objectively whether the conditions do, in fact, exist, the court is merely to judge subjectively whether the requisite state of mind exists in the Minister or the relevant authority. But the courts detest legislative devices that make public authorities the sole judges of the extent of the powers conferred which in effect exempt such authorities from judicial control. There is a subjective element in the exercise of a discretionary power. Expressions such as if the Minister is satisfied differ only in degree from a power to act as the Minister thinks fit. The limits of that type of power are that the Minister must act reasonably, in good faith and upon proper grounds. But then in using subjective language, the discretion granted may be exceptionally wide. Regulation 18B of the Defence (General) Regulations, 1939, gives a very wide discretion: if the Secretary of State had reasonable cause to believe __________________________________________________________________________________________________________________________________________

164 Report of the Committee on Ministers Powers (Donoughmore Report), 1932 Cmnd 4060. 165 For example, National Insurance Act, 1911; Factories Act, 1961; Sex Discrimination Act, 1975, European Communities Act, 1972. 166 [1894] AC 347. 167 [1942] AC 206.

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a person to be of hostile origin or association, the Secretary of State would direct that person to be detained. Matters came to a head in Liversidge v. Anderson.167 The House of Lords eventually held that the discretion conferred on the Secretary of State under Regulation 18B was a matter outside the control of the courts. The courts could not inquire into the necessity of the exercise of the discretion. Lord Atkin dissented. His judgment is regarded today as the correct one. In R v. Inland Revenue Commissioners ex p. Rossminster,168 Lord Diplock stated that for his part he thought the time [had] come to acknowledge openly that the majority of [the House of Lords] in Liversidge v. Anderson were expediently and, at that time, perhaps excusably wrong and [that] the dissenting speech of Lord Atkin was right.

In Thornloe & Clarkson Ltd. v. Board of Trade,169 the Board of Trade was authorised to establish by order a development council for an industry where the Board or the Minister was satisfied that the establishment was desired by a substantial number of persons engaged in the industry. It was held that it was for the Minister or the Board to assess whether the requirement had been fulfilled. In Chitambazam v. King Emperor,170 the Act under consideration authorised the Governor to issue a Proclamation if at any time the Governor was ‘satisfied that a situation has arisen in which the government of Burma cannot be carried on’. A Proclamation was issued in which it was recited that the Governor was so satisfied. Lord Wright171 citing as authority Liversidge v. Anderson172 said that, as no suggestion is made that the Governor acts otherwise than in good faith, this declaration cannot be challenged.

In Jones v. Robson,173 it was held that the fact that a Secretary of State made an order was sufficient evidence that the Secretary of State was so satisfied. In R v. Comptroller General of Patents ex. p. Bayer Products Ltd174 Scott LJ said that, the effect of the words “as appears to him to be necessary or expedient” is to give to His Majesty in Council a complete discretion to decide what

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168 [1980] AC 952. 169 [1950] 2 All ER 245. See also Adegbenro v. Akintola [1963] AC 614. 170 [1947] AC 200. 171 At p.207. 172 [1942] AC 206. 173 [1901] 1 QB 673. 174 [1941] 2 KB 306. 175 At pp.311, 312.

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regulations are necessary for the purposes named in the subsection. That being so, it is not open to His Majesty’s Courts to investigate the question whether or not the making of any particular regulation was in fact necessary or expedient for the specified purposes.175

In Point of Ayr Collieries v. Lloyd George176 the court again considered similar provisions and held that the court had no jurisdiction to interfere with the Minister’s decision, and that the Minister was the sole judge whether or not a case for the exercise of the powers had arisen. In the Chemicals Reference177, Chief Justice Duff held that every Order-in-Council, every regulation and every rule derives its legal force solely from the enabling Act of Parliament which creates the power and not from the executive body by which they are made. He refused to entertain any arguments based upon the considerations which led to the making of the Regulations. It is submitted that if on the face of the Regulations it is apparent that the regulation-making authority could not have been satisfied as to the existence of certain facts as required by the statute, the Regulations would presumably be ultra vires. Thus the court can inquire into the validity of a set of Regulations, although the regulation-making authority was satisfied with the necessity for making it, if other conditions are not fulfilled, e.g. publication, laying before Parliament, good faith, reasonableness, consultation, error of material fact or of law.178 In Ross-Clunis v. Papadopoullos & Others, 179 the Privy Council considered the words if satisfied and held: If it could be shown that there were no grounds on which the appellant could be so satisfied, a Court might infer that he did not honestly form that view or that, in forming it, he could not have applied his mind to the relevant facts.

In Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen and Others (No. 2)180 the Secretary of State had statutory power to seek a secret ballot order where it appeared to him that certain circumstances existed. Could the correctness or reasonableness of the Secretary of State’s belief as to the existence of those requisite circumstances be challenged? Lord Denning MR said that, the Minister’s decision is [not] put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the Minister is dealing. In this case I would think that, if the Minister does not act in good faith, __________________________________________________________________________________________________________________________________________

176 [1943] 2 All ER 546. 177 [1943] SCR 1 at p.13. 178 Secretary of State for Education and Science v. Tameside Metropolitan Borough Council [1977] AC 1014; Laker Airways Ltd. v. Department of Trade [1977] QB 643. 179 [1958] 2 All ER 23 per Lord Morton of Henryton at p.33. 180 [1970] 2 QB 55 at p.493.

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or if he acts on extraneous considerations which ought not to influence him, or if he plainly misdirects himself in fact or in law, it may well be that a court would interfere; but when he honestly takes a view of the facts or the law which could reasonably be entertained, then his decision is not to be set aside simply because thereafter someone thinks that his view was wrong.

He then excused the emergency procedure by saying: It has to be set in motion quickly, when there is not time for minute analysis of fact or of law.

Exclusive remedy An Act of Parliament may make specific provision for the availability of a particular remedy to persons adversely affected by action taken by an administrative agency under the Act. The question then arises whether that remedy should be considered as exclusive of other remedies. We are here concerned, however, with the situation where no such express statement of statutory intention can be found. In what circumstances will the courts infer from the provisions of a specific remedy that that remedy is to be exclusive? In Barraclough v. Brown,181 a harbour authority was empowered by statute to recover from a vessel’s owner the expenses it had incurred in removing the vessel from the harbour in which it had sunk. The expenses, which would not have been recoverable at Common Law, were under the statute made recoverable summarily before the magistrates. The harbour authority sought instead a declaration from the High Court as to its entitlement to the expenses. The House of Lords refused to grant a declaration and held that the only right conferred by statute is to recover such expenses from the owner of the vessel in a court of summary jurisdiction. The Barraclough principle was applied in Healey v. Minister of Health.182 It was held that the procedure by way of a declaration could not be resorted to, in a case where the statute has provided a different remedy in respect of disputes in question. Even if the statute did not mention the remedy to be exclusive, it would be considered as being exclusive. But in Pyx Granite Co. Ltd. v. Minister of Housing,183 the appellants sought a declaration of their Common Law rights to quarry their land without the need to obtain permission under the Town and Country Planning Act 1947.184 It was urged that the appellant had to apply to the local planning authority, with a right of appeal therefrom to the Minister, whose decision was to be __________________________________________________________________________________________________________________________________________

181 [1897] AC 615. 182 [1954] 2 QB 221. 183 [1970] AC 260. See also Slough Estates v. Slough Borough Council [1968] Ch 299. 184 10 & 11 Geo 6 Ch 51.

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final. The House of Lords rejected this argument and held that the principle in Barraclough v. Brown did not apply. Viscount Simonds explained: The appellant company are given no new right of quarrying by the Act of 1947. Their right is a Common Law right and the only question is how far it has been taken away. They do not uno flatu claim under the Act and seek a remedy elsewhere. On the contrary, they deny that they come within its purview and seek a declaration to that effect. There is, in my opinion, nothing in Barraclough v. Brown which denies them that remedy, if it is otherwise appropriate.

Constitutional ouster clauses Where a constitution provides for ousting the jurisdiction of the courts, a serious problem arises in the interpretation of such ouster clauses. It had been argued185 that these clauses must be taken at face value since they represent the clear policy intent of the founding fathers of the constitution that certain questions should not be reviewed by the courts. This argument may apply where the constitution specifically ousts the jurisdiction of the courts in respect of certain discretions ascribed to the Head of State. The Head of State has certain immunities from civil and criminal proceedings during the prescribed term of office. Thus an ouster clause protecting the discretion of the Head of State from interference by the courts is made in conformity with the immunities enjoyed by the Head of State.186 Thus where the constitution itself ousts the jurisdiction of the courts, ‘the courts lose their jurisdiction to entertain those questions altogether because they have no power to override the constitution and the questions, accordingly, become unjusticable.’ This view was applied by Hyatali CJ in Harrikissoon v. Attorney-General of Trinidad and Tobago.187 He said he was firmly of the opinion that a court would be acting improperly if a perfectly clear ouster provision in the constitution of a country which is its supreme law is treated with little sympathy or scant respect, or is ignored without strong and compelling reasons.

Does this mean that the door is left open to review a constitutional ouster

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185 Dr Basu, Constitution of India (1965) Vol 1 p. 338. 186 See, for example, the Constitution of the People’s Republic of Bangladesh. The proviso to clause (3) of article 48 protects the advice tendered by the Prime Minister to the President from any question in a Court Clause (5) of article 55 protects the President’s attestation or authentication of an order. Article 5 provides for the Immunities of the President from legal proceedings Article 98(2) of the Constitution of Trinidad and Tobago provides for the protection of the President’s discretion. 187 [1981] AC 265.

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clause in the face of ‘strong and compelling reasons’? If so, what would those reasons be? Dr Albert K. Fiadjoe188 supplies a very rational answer: ‘Any evidence of an “offence” against the constitution is enough to satisfy the test of strong and compelling reasons without necessarily having to draw the distinction between administrative, judicial and quasi-judicial functions.’

In Kesavananda v. State of Kerala 189 the Supreme Court of India considered a constitutional ouster clause. Article 13c of the Constitution was incorporated by way of the Twenty-fifth Amendment to the Constitution. It provided that Notwithstanding anything contained in article 13, no law giving effect to the policy of State … shall be called in question in any court.

The Supreme Court held this ouster clause of the Constitution to be ultra vires the Constitution and declared it invalid. The second part of that article which ousted the jurisdiction of the courts was struck down. But, for constitutional cases, the most important case is Smt. Indira Gandhi v. Raj Narain.190 It arose from a dispute over Mrs Indira Gandhi’s election to the Lok Sabha in 1971 when the validity of the Constitution (Thirty-ninth Amendment) Act 1975 was challenged.191 By that Amendment Act, Article 329A(4) and (5) was inserted. The amending article provided that a dispute as to the election of the Prime Minister and of the Speaker would be resolved by Parliament itself, that the existing law for determining election disputes would not apply to the election of the Prime Minister and of the Speaker, that the disputed election of the Prime Minister, Mrs Indira Gandhi, was valid and that the election petition against her abated. The Supreme Court declared the Amendment Act invalid and held that Parliament, by declaring the disputed election ‘valid’, exercised a judicial power not vested in it by the Constitution. Again in 1980, the Supreme Court of India considered another constitutional ouster clause. Article 368(4) of the Constitution was incorporated by the Forty-second Amendment to the Constitution. In Minerva Mills Ltd. v. Union of India192 it was held that the consequence of exclusion of __________________________________________________________________________________________________________________________________________

188 Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review in Commonwealth Caribbean Public Law, Commonwealth Caribbean Legal Studies, p.165. 189 ALR (1973) SC 1461. 190 AIR (1975) SC 2299. 191 Mrs Indira Gandhi was elected to the Lok Sabha, that is, the Lower House of Parliament. The election was challenged by Raj Narain, a contesting candidate, on an election petition. The petition was allowed and the election was declared void by the Election Tribunal on the ground that Mrs Indira Gandhi had adopted corrupt practices in the election She appealed to the Supreme Court. During the pendency of the appeal, Parliament passed that Thirty-ninth Amendment Act inserting article 329A(4) and (5). 192 AIR (1980) SC 1789.

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the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and by the exclusion of judicial review the amending power of Parliament would stand enlarged. This would undoubtedly damage the basic structure of the Constitution in two ways: • the limited power of Parliament to amend the Constitution; • the power of judicial review which gives the mandate to the Supreme Court to examine whether an authority under the Constitution has exceeded the limits of its powers. Bhagwati CJ reiterated his views expressed in Smt. Indira Gandhi v. Raj Narain 193 that judicial review was a basic and essential feature of the Constitution of India, and no law passed by Parliament could abrogate or take it away. The legality of the exercise of the powers of the Executive and of the Legislature could not be decided by the Executive or the Legislature themselves. In Guyana the courts took the clear position that the ouster clause in the Constitution could be reviewed on the ground of jurisdictional error. In Re Sarran194 Cummings JA said: It means no more than that there can be no enquiry by a court into the validity of an act that the Commission is legally authorised to do; this does not mean that if the Commission or person does something which it has no jurisdiction to do, or which is beyond its or his power, as defined in the Constitution, that that act cannot be enquired into by the courts.

In Farrell v. Attorney-General of Antigua195 the Court of Appeal of the Associated States considered the ouster clauses in the Industrial Court Act 1976 and held that the provisions of the Act, in so far as they purport in s.17(4) to divest the Supreme Court of its supervisory jurisdiction were in conflict with the Constitution and, therefore, void. In Tomas v. A-G196 the Judicial Committee of the Privy Council held that it was for the court and not for the Police Service Commission to determine what, on the true construction of the Constitution, were the limits to the functions of the Commission. If the Commission did something beyond its functions or the validity of which was challenged as a contravention of the rights guaranteed by the Constitution, s 102(4) of the 1962 Constitution would not oust the jurisdiction of the courts. __________________________________________________________________________________________________________________________________________

193 AIR (1975) SC 2299. 194 (1981) 32 WIR (PC) 375. 195 (1979) 27 WIR 377. 196 (1989) 41 WIR 299. 197 (1981) 32 WIR (PC) 375.

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In 1989 the Court of Appeal of Trinidad and Tobago considered s.129(3) of the Constitution of Trinidad and Tobago. In Jones v. Soloman,197 the Court held that although s.129(3) of the Constitution precluded any court from inquiring into the validity of the performance of the functions vested in a service commission by the Constitution, the courts were not absolutely debarred from reviewing the decisions of such commissions if, for example, a Commission had acted capriciously or arbitrarily. In Sundry Workers v. Antigua Hotel and Tourist Association,198 s.17(6) of the Industrial Court Act, 1976 was considered in the light of s.122 of the Constitution of Antigua and Barbuda 1981 by the Judicial Committee of the Privy Council. Subsection (1) of s.17 of the Act prescribes certain grounds for appeal from an order or award of the Industrial Court to the Court of Appeal. Subsection (4) prohibits any other remedy. The question for decision was whether an appeal lay to Her Majesty from a decision of the Court of Appeal of Antigua and Barbuda determining an appeal from a judgment of the Industrial Court. The Privy Council held that s.17(6) was not a bar, and that the right of appeal to Her Majesty-in-Council is a constitutional one. From these cases the conclusion could be drawn that constitutional ouster clauses are no longer a bar to judicial review – nor are they any different from statutory ouster clauses. The determination and the ingenuity of judges have led to a dislike of ouster clauses. The Committee on Ministers’ Powers 1932199 recommended that ouster clauses should, in all but the most exceptional cases, be abandoned. In 1957 the Franks Committee200 recommended that no statute should contain words purporting to oust the prerogative remedies. The Tribunal and Inquiries Act 1971201 replacing the Act of 1958,202 has pointed the way in respect of the latter recommendation. Section 14 of that Act provides that, Any provision in an Act passed before 1st August, 1958, that any order or determination shall not be called in question in any court, or any provision in such an Act which by similar words excluded any of the powers of the High Court, shall not have effect so as to prevent the removal of the proceedings into the High Court by order of certiorari or to prejudice the powers of the High Court to make orders of mandamus.

A review of most of the cases on ouster clauses would seem to suggest __________________________________________________________________________________________________________________________________________

198 (1993) 42 WIR 145. 199 Cmnd 60 p.65. 200 Cmnd 218 para 117. 201 C 62. 202 6 & 7 Eliz 2 Ch 66. 203 C.56.

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that, whatever the form of the wording, an ouster clause may fail to protect an ultra vires decision or act. However, the form is not yet dead. Section 7 of the Interception of Communications Act 1985203 establishes a tribunal to investigate complaints relating to the interception of communications under the Act. Subsection (8) provides that, the decisions of the Tribunal including any decision as to their jurisdiction shall not be subject to appeal or liable to be questioned in any court.

Are the words ‘including any decision as to their jurisdiction’ an attempt to defeat Anisminic? Rules of Natural Justice The presumption of natural justice is a corollary to the presumption that an Act of Parliament does not intend to exclude the jurisdiction of the courts of law. It requires that an authority shall not be a judge in its own cause, that there is no bias, that a party to an action or any other proceedings is not condemned without a hearing, that the party concerned shall be informed of the reason for the decision given.204 It does not mean that the authority exercising a quasi-judicial function must of necessity observe the procedure and follow the technical rules of evidence practised in a court of law. It is sufficient that the authority adopts a procedure that affords to a party to the proceedings an opportunity to produce evidence, an opportunity to challenge or contradict prejudicial statements. In fine, the authority is required to hear all the parties to the dispute and, generally, observe what a layman would describe as fair play. The courts will interfere where grave injustices might be done or where justice might not be observed since a decision which offends the principle of natural justice is outside the promise of the decision-making authority. 205 In Fairmount Investments Ltd. v. Secretary of State for the Environment206 Lord Russell stated that, it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in particular procedures, compliance with those principles.

The use by Lord Russell of the words, unless the contrary appears, creates the impression that Parliament would expressly or by necessary implication

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204 Hood Phillips, Constitutional and Administrative Law, 4th ed p.634. 205 Attorney-General v. Ryan [1980] AC 718; Isaacs v. Robertson [1985] AC 97. 206 [1976] 1 WLR 1255 at p.1263. 207 1934 SA(AD) 11 at p.38.

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exclude the presumption that the principles of natural justice need be observed. Indeed, South Africa is replete with examples in which the courts have decided that statute has excluded the principles of natural justice. In the most important case on the matter, Sachs v. Minister of Justice,207 Strafford ACJ said: Sacred though the maxim audi alteram partem is held to be, Parliament is free to violate it. In all cases where by judicial interpretation it has been invoked, this has been justified on the ground that the enactment impliedly incorporated it. When, on the true interpretation of the Act, the implication is excluded, there is an end of the matter.

Retroactive and Retrospective Operation of Statutes A statute may be said to be retroactive or retrospective in operation. The two words are often used interchangeably,208 but there is a distinction, however subtle that distinction is. Driedger209 establishes that there is a difference between retroactive and retrospective even if in the dictionaries the definition of the one word includes that of the other. A statute could be • retroactive but not retrospective; • retrospective but not retroactive; • both retroactive and retrospective. And statutes that are both retroactive and retrospective could be, and usually are, prospective in character. It is a fundamental rule of English law that no statute is construed to have a retrospective operation unless that construction appears very clearly in the terms of the Act, or arises by necessary and distinct operation. 210 The presumption against retrospective operation applies in the interpretation of legislation of a penal nature and is based on the general principle that penal enactments are construed strictly and not extended beyond their clear meaning.211 The presumption applies to both retrospective and retroactive operation of the law, but the test of retroactivity is different from that of retrospectivity. For retroactivity the question is whether there is in the Act, read as a whole, anything which indicates that the Act must be deemed to be the law from a __________________________________________________________________________________________________________________________________________

208 See, for example, C K Comans, The Power of the Commonwealth Parliament to make Retrospective or Retroactive Laws is Well Established, 27 Australian Law Journal. 209 Construction of Statutes, p.186. 210 Phillips v. Eyre (1870) LR 6 QB p.23. 211 See, for example, Attorney-General for Canada v. Hallet and Carey [1952] AC 427.

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date antecedent to its enactment? For retrospectivity the question is whether there is anything in the Act which indicates that the consequences of an earlier event are changed, not for the time before the enactment, but prospectively from the time of the enactment, or from the time of the commencement of the Act. The application of the presumption against the retrospective operation of statutes is a difficult problem in the process of statutory interpretation. There is a confusion between presumptions: the presumption against interference with vested rights and the presumption against the retrospective operation of the law. A statute that interferes with or destroys a previously acquired right could not be said to be retrospective. Thus in West v. Gwynne,212 the question for determination was whether s.8 of the Conveyancing and Law of Property Act 1892213 was of general application; or whether its operation was confined to leases made after the commencement of the Act. It provided that in a lease containing a covenant against assigning or under-letting without licence or consent, the covenant should be deemed to be subject to a proviso to the effect that no fine was payable for the licence or consent. It was argued that a statute is presumed not to have a retrospective operation unless the contrary appears by express language or by necessary implication. Cozens Hardy MR assented to that general proposition, but he said that he failed to appreciate its application to the present case. To Buckley LJ the issue of retrospection was irrelevant. ‘Retrospective operation is one matter. Interference with existing rights is another.’ West v. Gwynne also supports the proposition that there are two distinct kinds of requisites for the application of a statute ‘drawn from time antecedent to its passing’. The first is a characteristic, the second an event. A statute cannot be said to be retrospective merely because it is brought into operation by a characteristic or status that arose before it was enacted. That in my view would make it retroactive. The second is a fact situation which occurred, or a status which was acquired, before the commencement of the statute. A statute is retrospective if it is brought into operation by a prior event described in it. In West v. Gwynne, there was a fact-situation which could be described as a characteristic only and not an event. Language is not always precise. Hence the difficulty in saying precisely whether the words in an Act setting forth a fact-situation are intended to describe an event or a characteristic. For example, a provision of an Act that __________________________________________________________________________________________________________________________________________

212 [1911] 2 Ch 1. 213 55 & 56 Vict Ch 13. 214 (1875) LR 10 QB 195.

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the Act applies to a person who was employed on 1 January 1970, has two elements. One, that the person referred to took employment on that day – an event. Two, that the person referred to was an employee on that date – a characteristic, a status. In R v. Vine214 it was provided that ‘every person convicted of a felony’ should be disqualified from selling spirits by retail. The court, by a majority, interpreted that provision to mean a convicted person, therefore applying the statute to persons convicted before the statute came into being. Lush J dissenting, said the phrase meant ‘every person who shall hereafter be convicted’. To the majority there was a disability, attached to a characteristic. A person who was caught within the ambit of that provision had acquired a status, that of a convicted person – whatever the date of the conviction. That, clearly, is a retrospective operation of the statute. A retroactive statute is one that states, simpliciter, This Act shall be deemed to have come into force on the first day of July, 1980.

when its date of enactment is, say, June, 1985. A retrospective statute operates for the future. It is prospective in character but imposes new results in respect of a past event or transaction. A retroactive statute does not operate backwards; it operates forwards from a date prior to its enactment. A retrospective statute operates prospectively but attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was, or from what it otherwise would be with respect to a prior event or transaction. In West v. Gwynne the true reason for holding that the statute in question was not retrospective was that there was no reference in the statute to a past event or transaction – the only reference was to leases of a certain kind. Yet Buckley LJ rejected the presumption because the statute was not operative as of a past time. His definition of retrospectivity was in fact a definition of retroactivity. He said: If an Act provides that as at a past date the law shall be taken to have been that which it was not, that Act I understand to be retrospective.

Phillips v. Eyre215 dealt with an Act of Indemnity. The Act was ‘expressed to be operative with respect to past transactions as of a past time’ and thus was in essence retroactive. Where an Act attaches an obligation or disability or imposes a duty as a new consequence, prejudicial in most cases, of a prior event, then it can be said to be retrospective. In Re A Solicitor’s Clerk216 the statute provided that, __________________________________________________________________________________________________________________________________________

215 (1870) LR 6 QB 1. 216 [1957] 1 WLR 1219.

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Where a person who is or was a clerk to a solicitor ... has been convicted of larceny ... or any other criminal offence in respect of any money or property belonging to or held by the solicitor ... an application may be made ... that an order be made directing that ... no solicitor shall ... take or retain the said person into or in his employment.

It was held that the making of an order in respect of a clerk who had been convicted prior to the enactment of the statute was a retrospective operation. Goddard LCJ said that in his opinion the Act is not in truth retrospective. It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what has happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect .... This Act simply enables a disqualification to be imposed for the future and in no way affects anything done by the appellant in the past.

Indeed, the dictum of Goddard LCJ is in fact a classic statement of what a retrospective statute is. The fact situation here was the characteristic of the clerk as a convicted person. Similarly in R v. Vine,217 the statute imposed a disability on ‘every person convicted of a felony’. That person had acquired a status, that is, the status of a convicted person. The statute attached a disability to a characteristic and not to the felonious act or the conviction qua conviction. According to Driedger, there are three kinds of statutes that can properly be said to be retrospective: (a) statutes that attach benevolent consequences to a prior event; (b) statutes that impose a penalty on a person who is described by reference to a prior event, but the penalty is not a consequence of the event; (c) statutes that attach prejudicial consequences to a prior event.

Of these, only the last attracts the presumption against the retrospective operation of the law. It is not difficult to identify a retroactive statute. There is a specific statement that it shall be deemed to have come into force on a date prior to its enactment. Or it is expressed to be operative with respect to past transactions as of a past time.218 What is difficult is first to identify a retrospective statute and then to distinguish between those retrospective statutes that attract the presumption and those that do not. The latter may be illustrated by two examples219: A person convicted of impaired driving is disqualified from holding a licence.

This provision imposes a new disability and the courts would in all __________________________________________________________________________________________________________________________________________

217 [1875] LR 10 QB 195. 218 Driedger, Construction of Statutes, p.186. 219 Taken from Driedger, Construction of Statutes, p.198.

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likelihood hold that the statute would be given retrospective effect if it were applied in respect of prior convictions. A person convicted of impaired driving shall pay an additional insurance premium of $100 to the Government Insurance Commission. Here there is a further penalty imposed in respect of a conviction. But would a Court following R v. Vine and Re A Solicitor’s Clerk hold that its application in respect of prior convictions is not retrospective? In the second example, where an Act provides that: A person who has attained the age of eighteen years is qualified to vote at an election,

no one would say that the Act applies only to persons who attained the age of eighteen years after its enactment. This is a beneficial provision. But if the Act provided that, The lands of a person who has been convicted of the offence of treason are forfeited to the State,

no one would want to apply that Act to convictions before its enactment. This is a prejudicial provision. The situations in between these two extremes are the difficult ones. The principle is that the presumption applies if the statute would attach a new duty, disability, or penalty, that is to say, a prejudicial consequence, to a prior event. To discover when a prejudicial provision is a consequence of an event and when it is not, it is instructive to examine cases like R v. Vine. As stated above, in that case the statute considered provided that, Every person convicted of a felony shall forever be disqualified from selling spirits by retail, and no licence to sell spirits by retail shall be granted to any person who shall have been so convicted ....

The question, as stated by Cockburn CJ, was whether a person who had been convicted of a felony before the Act was passed became disqualified on the passing of the Act. There was no provision in the Act that could be construed as a rebuttal of the retrospective presumption. Cockburn CJ said: Here the object of the enactment is not to punish offenders, but to protect the public against public houses in which spirits are retailed being kept by persons of doubtful character.

He obviously construed the words ‘Every person convicted of a felony’ as referring to a status or characteristic only, and not to a past transaction. The majority regarded the new disability as a protection to the public, and not as a new punishment. Archibald J said: It is an enactment with regard to public and social order, and the infliction of __________________________________________________________________________________________________________________________________________

220 [1894] 1 QB 725.

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the penalty is merely collateral.

In his view the statute was retrospective since he considered that a new disability was attached to past events. On Cockburn’s view the statute was prospective only since the fact-situation described in the statute was a characteristic that arose in the past and not a past event. In Re Pulborough Parish School Board Election,220 the Court of Appeal considered a provision of the Bankruptcy Act 1883. It provided that where a debtor is adjudged bankrupt, he should be subject to certain disqualifications, including election to the office of member of a school board. The question was whether the Act applied to a person who had been adjudged bankrupt before its enactment. The majority held that it did not. Lopes J said: It has been contended that the words “is adjudged bankrupt” are to be read, “has been adjudged bankrupt either before or after the passing of this Act”. I cannot so read those words …. Under s.32 of the Bankruptcy Act 1883 the respondent on being adjudged a bankrupt is disqualified from being elected a member of the school board until the adjudication of bankruptcy against him is annulled, or he obtains from the court his discharge, with a certificate to the effect that his bankruptcy was caused by misfortune, without any misconduct on his part … A new disability, therefore, is imposed upon him, and disabilities are imposed on other persons which had no existence before the Bankruptcy Act of 1883. Having regard to the scope of the Act, and the rule of construction applicable to statutes, I am confirmed in my view that the true meaning of the words in s.32 “is adjudged bankrupt”….

Davey CJ stated: It has been suggested that the words be read as meaning “where a man is an adjudicated bankrupt”. The answer seems to me to be that those are not the words before us, and that the words we have to construe are grammatically different. I think the words “is adjudged” are the verb, whereas in the paraphrase suggested the word “adjudicated” would be an adjective. The one form of sentence points to an event to happen, whereas the form suggested predicates a certain quality of the subject which may just as well attach to him by a previous adjudication as by a subsequent one.

Lord Esher dissented. In his opinion section 32 is not penal within the meaning of the proposition, which states that a penal statute must be construed strictly, and in my opinion it is not, in the true sense of the term, retrospective. To my mind, to say that the legislature intended to punish a debtor of whom that can be said would be to charge the legislature with injustice. The disqualifications are intended solely for the protection of

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221 Construction of Statutes, p.202.

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the public, and not by way of punishment. The case of R v. Vine is a strong authority to show that under such circumstances that which is enacted is not penal.

Driedger221 considers that if the intent is to punish or penalise a person for having done what he did, the presumption applies because a new consequence is attached to a prior event. If the new punishment or penalty is intended to protect the public, the presumption does not apply. In R v. Vine the majority held that the object of the statute was not to punish offenders but to protect the public. Lush J, however, considered the Act a highly penal enactment, and on that view the presumption would apply. In Re Pulborough, the majority held the disabilities to be added to those set out in the Bankruptcy Act. Lord Esher did not think that the new disqualifications were intended as punishment but that they were intended solely for the protection of the public. In summary it may be stated that,222 (a) an Act is retroactive where it changes the law from a date prior to the date of its enactment; (b) an Act is retrospective where it attaches new consequences to an event that occurred prior to its enactment; (c) an Act is not retrospective by reason only that it adversely affects an antecedently acquired right; (d) an Act is not retrospective unless the description of the prior event is the fact-situation that brings about the operation of the Act; (e) the presumption against the retrospective operation of an Act does not apply, (i) where the consequences attaching to the prior event are prejudicial ones, namely, a new penalty, a new disability or a new duty; (ii) if the new prejudicial consequences are intended as protection for the public rather than as punishment for a prior event; (f) Regulations can not be given retrospective or retroactive effect unless the enabling Act so authorises, expressly or by necessary implication; (g) there is one exception to the presumption against retrospective operation of an Act, that is, where an enactment is repealed and replaced, the new enactment is retrospective so far as it is a repetition of the former enactment.

Conformity with the Rules of International Law __________________________________________________________________________________________________________________________________________

222 Construction of Statutes, pp.202-203. 223 (1883) 8 P D 101 at p.104.

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There is a presumption that an Act of Parliament will not be interpreted so as to violate a rule of international law. The courts will not construe an Act so as to bring it into conflict with international law. In Bloxham v. Favre223 it was stated that, every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established principles of international law.

This does not mean that an Act of Parliament would be declared ultra vires as being in contravention of an international law, but that the Courts will desist from a construction that would lead to a breach of an accepted rule of international law.224 The courts therefore take judicial notice of international law, but treaties do not form part of the municipal law. They need incorporation into the municipal law by the legislature or through the constitutional processes required by each jurisdiction. In Salomon v. Customs and Excise Commissioners,225 it was held that where the evidence was clear that the enactment is the direct result of a Convention, the Convention would be read in the interpretation of the enactment even though the Convention is not specifically mentioned in the enactment.226 It is thus instructive to consider what Lord Denning said in Trendtex Trading Corporation v. Central Bank of Nigeria227: The doctrine of sovereign immunity is based on international law. It is one of the rules of international law that a sovereign state should not be impleaded in the courts of another sovereign state against its will. Like all rules of international law, this rule is said to arise out of the consensus of the civilised nations of the world. All nations agree upon it, so it is part of the law of nations. To my mind this notion of a consensus is a fiction. The nations are not in the least agreed upon the doctrine of sovereign immunity. The courts of every country differ in their application of it…. There is no consensus whatever. Yet this does not mean that there is no rule of international law upon the subject. It only means that we differ as to what that rule is …. A fundamental question arises for decision. What is the place of international law in our English Law? One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated in English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international __________________________________________________________________________________________________________________________________________

224 Cheney v. Conn Airways [1968] 1 All ER 779; Corocraft Ltd. v. Pan-Am Airways [1969] 1 QB 616. 225 [1967] 2 QB 116. 226 See also Post Office v. Estuary Radio [1968] 2 QB 740; Corocraft Ltd. v. Pan Am Airways [1969] 1 QB 616. 227 [1972] QB 529 (CA) at pp.552-554.

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law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation, the English law does not change. It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international law develops. As between these two schools of thought, I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognise a change in the rules of international law. It is certain that international law does change ... and the courts have applied the changes without the aid of any Act of Parliament .... It follows ... that a decision of this Court – as to what was the ruling of international law fifty or sixty years ago – is not binding on this Court today. International law knows no rule of stare decisis.

Action or Conduct Lawful There is a presumption in the construction of a statute that a reference to an action or a conduct, unless a contrary intention appears, is a reference to a lawful action or lawful conduct. A power conferred by statute enabling a thing to be done is a power conferred that what is allowed to be done shall be done lawfully. Otherwise there is a breach for which the courts will enforce the appropriate remedy. In Wolverhampton New Waterworks Co. v. Hawkesford,228 Willes J said: There are three classes of cases in which liability may be established by statute: There is that class where there is a liability existing at Common Law which is only remedied by the statute with a special form of remedy: thus, unless the statute contains words expressly excluding the Common Law remedy, the plaintiff has his election of proceeding either under the statute or at Common Law. Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it: thus the party may adopt an action of debt or other remedy at Common Law to enforce it.229 The remedy which by law is properly applicable to the right or the obligation flows as an incident.230 The third class is where a statute creates a liability not existing at Common Law, and gives also a particular __________________________________________________________________________________________________________________________________________

228 (1859) 6 C B (N S) 336 at p.356. See also Dawson & Co. v. Bingley Urban District Council [1911] 2 KB at 149 at p.156. 229 In such a case the Common Law will, in general, give a remedy suited to the particular nature of the case: Doe d Bishop of Rochester v. Bridges (1831) 1 B & Ad 847, 859, Lord Tenterden CJ; See also Devonport Corporation v. Plymouth, etc, Tramways Co. (1884) 52 L T 161, 164. 230 Per Kennedy LJ in Dawson & Co. v. Bingley UDC [1911] 2 KB 149 at p.159.

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remedy for enforcing it. ... With respect to that class it has always been held that the party must adopt the form of remedy given by the statute.

Malfeasance, Misfeasance, Non-feasance In dealing with lawful acts or lawful conduct three things need to be distinguished: malfeasance, misfeasance and non-feasance. Malfeasance is evil conduct, that is, doing an act or thing which is clearly unlawful. It deals with what should not have been done at all, or the unjust performance of what a person had no right to do. It could be a wrongful act which affects, interrupts or in any way interferes with the lawful performance of an official duty. It is an act for which there is no authority or legal basis. Mis-feasance is the negligent doing of an act for which there is legal authority. It is equivalent to negligence in the discharge of a statutory duty. Non-feasance is the failure to do what is lawfully permitted.231 These two instances often involve the breach of a statutory duty, whether ministerial or judicial. In order to succeed in an action based on a statutory breach three things need to be established: (a) that the injury which is the cause of action was contemplated by the statute; (b) that the person who has suffered as a result of the breach is a person who falls within the ambit of the statute; and (c) that the damage falls within the injury contemplated by the statute.232

Application to Crown or Republic Interpretation Acts usually provide that the Crown, State or Republic is not bound by legislation unless there are express words which provide that the Act binds the State, or there are words to that effect, or the State is named by necessary implication. It is also a well settled principle of construction that an Act does not affect the prerogatives, rights and interests of the Crown unless

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231 Vaughan v. Taff Vale Railway (1860) 5 H & N 679. 232 East Suffolk Rivers Catchment Board v. Kent [1914] AC 74; Mersey Docks & Harbour Board v. Gibbs (1866) LR 1 HL 93; Geddis v. Proprietors of Bann Reservoir (1878) 3 App Cas 430; Longhurst v. Metropolitan Water Board (1948) 64 T LR 579; Bank View Mill Ltd. v. Nelson Corporation [1943] KB 337. 233 Attorney-General v. Hancock [1940] 1 KB 427. 234 Attorney-General for Ceylon v. AD Silva [1953] AC 461; China Ocean Shipping Co. v. South Australia (1929) 27 ALR 1.

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there are clear words in the Act that indicate interference.233 This is founded on the presumption that an Act of Parliament does not bind the Crown in the absence of an express provision or necessary implication,234 which is a longstanding rule of interpretation which applies in the case of a Republic. The Crown Proceedings Act 1947235 expressly refrains from altering this longstanding rule.

Words to have the same meaning There is a presumption that words in a statute are strictly and correctly used.236 Lord Hewart CJ in Spillers Ltd. v. Cardiff Assessment Committee,237 stated: It ought to be the rule and … it is the rule that words are used in an Act of Parliament correctly and exactly and not loosely and inexactly. Upon those who assert that the rule has been broken, the burden of establishing their proposition lies heavily, and they can discharge it only by pointing to something in the context which goes to show that the loose and inexact meaning is to be preferred.

But the warning given by Lord Loreburn LC in Nairn v. University of St. Andrews238 should be taken into account: It is a dangerous assumption to suppose that the legislature foresees every possible result that may ensue from the unguarded use of a single word, or that the language used in statutes is so precisely accurate that you can pick out from various Acts this and that expression, and, skilfully piecing them together, lay a safe foundation for some remote inference.

In other words, the words of an Act of Parliament should not be construed without reference to the context. Thus an Act is read as a whole, for the language of one section may affect the construction of another. This presupposes that a word is used to mean one thing and is not used in an Act of Parliament to mean different things. Nor are different words used to mean the same thing in an Act of Parliament; synonyms do not have a place in legislation. In Giffels & Vallet v. The King,239 it was said: It is not to be forgotten that the first inference is that a word carries the same __________________________________________________________________________________________________________________________________________

235 10 & 11 Geo 6 Ch 44. 236 Law Society v. United Services Bureau [1934] 1 KB 343. 237 [1931] 2 KB 21 at p.43; See also New Plymouth Borough Council v. Tara Electrical Power Board [1933] AC 680 at p.682. 238 [1909] AC 147 at p.161. 239 [1955] 1 DLR 620 at p.630. 240 [1909] 2 KB 61.

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connotation in all places when it is found in a statute.

Territorial Operation Tomalin v. J Pearson & Son Ltd240 is authority for the presumption that, unless there is a contrary intention expressly stated or to be inferred from the language of the Act, its legislative history or subject-matter, an Act of Parliament does not operate outside the jurisdiction. The presumption is in consonance with Bloxham v. Favre,241 where it was said that, every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law.

Surplusage In Auchterarder Presbytery v. Lord Kinnoull,242 Lord Brougham said that ‘a statute is never supposed to use words without meaning’. Yet occasions still arise when verbosity has caused ambiguity. The courts must still construe the language used, and in such cases the courts will adopt a ‘construction which will give some effect to the words rather than that which will give none.’ In Hill v. William Hill (Park Lane) Ltd.243 Viscount Simon said: It is observed that though a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, this repetition in an Act of Parliament is not to be assumed. When the legislature enacts a particular phrase in a statute, the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which has not been said immediately before.

Much, much earlier in Harcourt v. Fox,244 Lord Holt had said: I think we should be very bold men, when we are entrusted with the interpretation of Acts of Parliament, to reject any words that are sensible in the Act. __________________________________________________________________________________________________________________________________________

241 (1883) 8 PD 101 at p.104. 242 (1839) 6 Cl & F 646 at p.686. 243 [1949] AC 530 at p.546. 244 (1693) 1 Show 506 at p.532. 245 R v. East Ardsley (Inhabitants) (1850) 14 QB 793 at p.801. 246 (1876) 1 CPD 691 at p.701.

The courts will not, however, hesitate to reject words as surplusage where to give a meaning to every word would make the Act of Parliament unintelligible.245 In Stone v. Yeovil Corporation,246 it was held that, it is a canon of construction that, if it is possible, effect must be given to every word of an Act of Parliament or other document, but that if there be a word or a phrase therein to which no sensible meaning can be given, it must be eliminated.

Chapter 6 Maxims

General A maxim is the quintessence of an experience, so in law a maxim is an attempt to capture the essential principle of a rule of law or conduct. However, a maxim only becomes reliable when the extent of its application has been tested by cases brought before the courts. Acquiescence, reasonableness, time and usage are the mothers of a maxim of the law. In this Chapter an attempt is made to deal with some, but by no means all, of the maxims that have a bearing on the interpretation of a statute. Indeed, some of the maxims used in the interpretation or construction of an Act of Parliament have been dealt with in the course of explaining the approach of the courts in the interpretation or construction of statutes. They form a general view of a practical utility in this area of the judicial function. As we have seen, an Act of Parliament may need to be interpreted or construed in order to get to the meaning of the Act or words in the Act when that is called in question. There must be rules to guide the courts in such an important role. The maxims here discussed are some to the principles that help the courts in the task of giving effect to an Act of Parliament – when its language is called in question. A later law repeals an earlier law that is inconsistent with the later law In the cases where there is inconsistency between provisions within the same Act, the courts modify the grammatical or ordinary meaning of the words in order to achieve a meaning in consonance with the scheme of the Act. This they do by relying on the principle of construction either that the general words control the meaning of the special words or the special words control the meaning of the general words.1 The same principles will be used where there is a conflict between different Acts. Where the conflict between different Acts cannot be reconciled the courts go by the principle that a later law repeals an earlier law that is inconsistent with the later law. This is based on the assumption that Parliament is aware of the contents of the statute book. And, since one Parliament cannot fetter the hands of a subsequent Parliament, an earlier Act must give way to a later Act __________________________________________________________________________________________________________________________________________

1

Seaward v. Vera Cruz [1881] 10 App. Cas. 59 at p.68; North Level Commissioners v. River Welland Catchment Board [1938] Ch.379.

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where the two Acts cannot be reconciled. This principle is also reflected in section 2 of the Interpretation Act 19782 which states that an Act may be altered, amended or repealed in the same session in which it was passed. Not only does the maxim apply as between earlier and later Acts, but it also applies to oust the operation of the common law where there is a conflict between the common law and statute law.3 Equally, when an ancient custom is repugnant to the express words of an Act of Parliament that custom stands abrogated.4 A new law ought to be prospective in character and not retrospective in operation Willis J, in Phillips v. Eyre,5 stated the principle of the application of the maxim: Retrospective laws are, no doubt, prima facie of questionable policy, and contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the character of past transactions carried on the faith of the existing law … Accordingly, the courts will not ascribe retrospective force to new laws affecting rights unless by express words or necessary implication it appears that such was the intention of the legislature.

The application of the maxim has already been discussed.6 Laws are adapted to frequent cases Legislation is enacted on the basis that it shall deal with cases as they arise. It is intended to deal with present circumstances, but with the implied projection that it shall deal with future cases. Hence the prospective nature of an Act of Parliament, unless otherwise stated or by necessary implication, as we have learnt from the preceding maxim. However, an Act of Parliament cannot be so drafted that it will include every possible case; Parliamentary Counsel and Parliament are not that clairvoyant. When in Miller v. Salomans7 it was argued that King George III having died, the oath specified under s.1 of the Treason Act 1766 8 could not be applied because the late King was specifically mentioned in the oath, Baron Parke stated: __________________________________________________________________________________________________________________________________________

2

C.46.

3

Stevens v. Chown [1921] 1 Ch.894.

4

Green v. R (1876) 1 App. Cas. 573.

5

(1890) LR 6 QB 1 at p.23.

6

See Chapter 5 pp.116-172.

7

(1852) 7 Exch. 475 at pp.549-553.

8

6 Geo. 3 c.53.

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If in the vast majority of possible cases – in all ordinary occurrence – the law is in no degree inconsistent or unreasonable, construed according to its plain words, it seems to me an untenable proposition, and unsupported by authority, to say that the construction may be varied in every case, because there is one possible but highly improbable one in which the law would operate with great severity, and against our own notions of justice. The utmost that can be reasonably contended is, that it should be varied in that particular case, so as to obviate that injustice – no further … It is clear that the legislature meant the oath to be taken always thereafter, and as it could not be taken in those words during the reign of a sovereign not of the name of George, it follows that the name George is merely used by way of designating the existing sovereign, and the oath must be altered from time to time in the name of the sovereign. This is an instance in which the language of the legislature must be modified, in order to avoid absurdity or inconsistency with its manifest intentions.9

A liberal construction is desirable in the interpretation of a statute In the interpretation of a statute, the intention of the law-giver is to be found in the language of the Act or by general inference drawn from the subject-matter of the Act. Thus an Act should be construed according to the intention of the legislature. That means that an Act will be construed so that effect is given to it rather than so as to stultify the intention of the legislature. However, where the intention of the legislature is not clear the courts will adhere to the natural import of the language of the statute. Thus in New Windsor Corporation v. Taylor10 it was stated: Where an Act of Parliament has, according to its true construction … “embraced and confirmed” a right which had previously existed by custom or prescription, that right becomes henceforward a statutory right, and … the lower title by custom or prescription is merged in and extinguished by the higher title derived from the Act of Parliament.

In the construction of penal statutes a liberal approach is adopted. Thus where the intention of the legislation is not clear the courts will adopt a construction which will not impose a burden on the subject. Furthermore, as stated by Lord Westbury in Dickson v. R,11 fiscal legislation [is] not to be extended by any laboured construction, but you must adhere to the strict rule of interpretation; and if a person who is subjected to a duty in a particular character or by virtue of a particular description no longer fills that

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9

See also Dixon v. Caledonian Ry Co. (1882) 5 App. Case 820 at p.838. 10 [1899] AC 41 at pp.45, 49. 11 (1864-65) 11 HL Cas 175 at p.184.

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character, or answers that description, the duty no longer attaches upon him and cannot be levied.

A passage is best interpreted by reference to what precedes and what follows it This really means that an Act of Parliament should be read as a whole and that every part of it should be taken into account. This is desirable if only because one assumes that in drafting one clause of a Bill the draftsman had in mind the language and substance of other clauses, and attributes to Parliament a comprehension of the whole Act.12

It is by reading the Act as a whole that one can really determine whether there is an ambiguity or not, whether it can be said that there is vagueness or that the words of a particular section are not clear. Viscount Simonds put it this way: It must often be difficult to say that any terms are clear and unambiguous until they have been read in their context. That is not to say that the warning is to be disregarded against creating or imagining an ambiguity … It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.13

Every piece of legislation has its own legislative scheme. Each word in an Act is intended to bear a particular meaning. If a section of an Act appears to be obscure its true meaning can only be ascertained by reference to what precedes it as well as to what follows it. Lord Wright in James v. Commonwealth of Australia14 showed how the word free is itself vague and indeterminate. Within the context in which it is used, however, its particular meaning becomes clear. The words of an Act of Parliament cannot be read in isolation. The meaning of a doubtful word may be sought by reference to the meaning of words attached with it This maxim is similar to a familiar adage: ‘show me your friend and I will tell you your character’ and is closely related to the previous maxim. It is, however, wider in scope. Said Stamp J in Bourne v. Norwich Crematorium Ltd.:15 __________________________________________________________________________________________________________________________________________

12 Inland Revenue Commissioners v. Hinchy [1960] AC 748 at p.766 per Lord Reid. 13 Attorney-General v. Ernest Augustus (Prince) of Hanover [1957] AC 436 at p.463. 14 [1936] AC 578 at pp.627-628. 15 [1967] 2 All ER 576.

Maxims

183

English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without disturbing the English language.

Thus in Corkery v. Carpenter,16 Daisy Bell and her stylish marriage did not help a defendant who argued that carriage as used in s.12 of the Licensing Act 187217 did not include a bicycle. It was held that bicycle fell within the words ‘drunk while in charge in any highway of any carriage …’. The ‘meaning of a doubtful word might be ascertained by reference to the meaning of words associated with it’.18 There is no need to interpret that which has no need of interpretation This is a maxim of common sense. No court of law will attempt to interpret or construe an Act of Parliament contrary to the express words of the Act. As Lord Denham observed in Everard v. Poppleton19: Nothing is more unfortunate than a disturbance of the plain language of the legislature, by the attempt to equivalent terms.

The express mention of one thing is the exclusion of another This is a maxim of long standing and importance. In Blackburn v. Flavelle20 it was stated: If there be any one rule of law clearer than another, it is this, that, where the legislature have expressly prescribed one or more particular modes of dealing with property, such expression always excluded any other mode, except as specifically authorised.

The maxim can be put no higher than as stated in Whiteman v. Sadler21: Express enactment shuts the door to further implication.

But in a Southern Rhodesia case, R v. Barrington,22 it was held that the maxim will not apply where its application ‘would obviously defeat the __________________________________________________________________________________________________________________________________________

16 [1951] 1 KB 102 at p.103. 17 35 & 36 Vict. c.94. 18 Per Lord Diplock in Peart v. Stewart The Times, 14 March 1983. 19 (1884) 5 QB 181 at p.184. 20 (1886) 6 App. Cas. 628 at p.634. 21 [1910] AC 514 at p.517. 22 1969 (4) SA 179 (RAD) at pp.182-3.

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Understanding Statutes

intention of the legislation and permit the very mischief which the statute is designed to prevent’. Said Beadle CJ: To make it an offence to offer gold for sale and not also make it an offence to offer to buy gold, would … appear to be most illogical because to do this might encourage the very mischief which the Act is designed to stop. For example, if a man made it widely known among the employees in a mining location that he was always prepared to buy unwrought gold, this would undoubtedly be an encouragement to employees to misappropriate gold in order to sell it to him. I cannot conceive that the legislature did not intend to prohibit unlawful buyers from canvassing for the purchase of gold.

A distinction is often drawn between absolute enactments and directory enactments. An absolute enactment must be obeyed or fulfilled exactly as expressed by the Act, otherwise what is done will be treated as unlawful and therefore invalid. A directory enactment need only be obeyed substantially.23 In Liverpool Borough Bank v. Turner24 Lord Campbell stated: No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.

This was approved in Howard v. Bodington25 by Lord Penzance: I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision and the relation of the provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.

Statutes on the same subject-matter are read together Statutes are said to be of the same subject or matter where they relate to the same thing or person or they have a common purpose. Such statutes are read, construed or applied together so that the intention of the legislature is discovered from the whole set of enactments on the same subject-matter. This maxim is only applied in cases where a particular Act of Parliament is ambiguous. In R v. Loxdale,26 Lord Mansfield stated the rule that where different statutes deal with the same subject-matter even when made at different times, expired, or not referring to each other, they shall be taken and construed together, as one system and as explanatory to each other. __________________________________________________________________________________________________________________________________________

23 Woodward v. Sarsons (1875) LR 10 CP 733 at p.746. 24 (1861) 30 LJ Ch.379 at p.380. 25 (1877) 2 PD 203 at p.211. 26 (1755) 1 Burr. 445 at p.447.

Maxims

185

A consolidation Act is a collection of the statutes bearing on the same subject-matter brought up to date in a comprehensive whole; a restatement of the law which was scattered about in various statutes as at the time of the consolidation. Therefore, in the construction of consolidation Act, statutes that are repealed but substantially reproduced in the consolidation Act are considered as of the same kind. Equally, the case law on a statute that is repealed can be used to construe an Act which is substantially identical to a repealing Act.27 However, the Acts will not be treated as if, together, they are parts of the same Act. There must be a clear indication before the principle can be applied that the Acts are on the same subject-matter.28 It is also not uncommon for an Act of Parliament to provide that it shall be read as one with another Act. In such cases the later Act is construed as if it had been contained in one Act, unless there is some manifest discrepancy making it necessary to hold that the later Act has, to some extent, modified something found in the earlier Act.’29

In cases, however, where there is a material difference between the words used in statutes on the same subject-matter, the presumption is that there was an intention to change the meaning.30 In Lord Howard de Walden v. Inland Revenue Commissioners,31 Lord Uthwatt said that, the introduction of new words into an existing section may alter the meaning of words already there. But no such alteration can result unless, (1) the requirements of the English language demand it or, (2) those requirements permit it and the sense of the section demands it.

The Interpretation Act 1967-68 of Canada provides in s.14(2) that, Where an enactment contains an interpretation section or provision, it shall be read and construed (a) as being applicable only if the contrary intention does not appear, and (b) as being applicable to all other enactments relating to the same subjectmatter unless the contrary appears.

There is a similar provision in the Interpretation Act of most Commonwealth countries.

__________________________________________________________________________________________________________________________________________

27 Inland Revenue Commissioners v. Hinchy [1960] AC 748. 28 Blake v. Attersoll (1824) 2 B & C 875 at p.882. 29 Canada Southern Railway v. International Bridge Co. (1883) 8 App. Cas. 723 at p.727. 30 R v. Price (1871) LR 6 QB 411 at p.416; R v. Buttle (1870) LR 1 CCR 248 at pp.251, 252. 31 [1948] 2 All ER 825 at p.830.

186

Understanding Statutes

General words following particular or specific words are construed as of the same kind or class as the particular or specific words In Great Western Railway Co. v. Swindon and Cheltenham Extension Railway Co32 Lord Bramwell said: As a matter of ordinary construction, where several words are followed by a general expression which is as much applicable to the first and other words as to the last, that expression is not limited to the last, but applies to all. For instance, “horses, oxen, pigs, and sheep, from whatever country they may come” – the latter words would apply to horses as much as to sheep.

In a New Zealand case, Cooney v. Covell,33 a question arose as to whether the words ‘advertisement or other publications’ applied to a pamphlet which was an appendix to a medical work. Williams J stated: There is a very well known rule of construction that if a general word follows a particular and specific word of the same nature as itself, it takes its meaning from that word, and is presumed to be restricted to the same genus as that word. No doubt that rule is one which has to be followed with care; but if not to follow it leads to absurd results, then I am of the opinion that it ought to be followed.

This maxim of construction of a statute is on a par with the other maxim which states that the meaning of a doubtful word may be sought by reference to the meaning of words associated with it. However, in order that the former maxim will apply, there must be one category to which both words belong.34 Therefore, where the words used are wider in their meaning the maxim will not apply.35 He who sticks to the letter of the law only gets to the bark of the tree The principle here is that the substance of the law, the effect of the law, are matters far weightier than the niceties of form or circumstances. The reason behind the law makes the law what it is. For ‘reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself’.36 Laws are not enacted for the mere purpose of enactment. They are intended in their application to achieve a purpose. That should be borne in mind when __________________________________________________________________________________________________________________________________________

32 (1884) 9 App. Cas. 787 at p.808. 33 (1901) 21 NZLR 106 at p.108. 34 Tillmans & Co. v. S.S. Knutsford [1908] 2 KB 385 at p.403; [1908] AC 207. 35 Corporation of Glasgow v. Glasgow Tramway and Omnibus Co. Ltd. [1898] AC 631 at p.634. See also National Association of Local Government Officers v. Bolton Corporation [1943] AC 166; Coleshill and District Investment Co. Ltd. v. Minister of Housing and Local Government [1968] 1 All ER 62 at p.65. 36 See for example, Edwards v. Porter [1925] AC.

Maxims

187

interpreting or construing an Act of Parliament. The present maxim is the spirit behind many rules of construction, such as (a) that the construction of a statute depends upon the intention of the lawmaker, which intention is to be collected from the words used in the statute37; (b) that statutes should be construed according to the ‘intention of Parliament’38; (c) that the words in a statute should be read in their popular, natural and

ordinary sense.39

Afterword Law is an instrument of justice. Its original purpose may have been political, in order to remove evils considered political by the body politic, but its progress has been dictated by experience. From taboos to custom, from custom to legislation, law has been and still is through legislation a great instrument of social change and the orderly development of society. Its reason cannot be hampered by mere niceties of language and form. Nor can the development of legislation be arrested by slavish adherence to principles which retard the purposes for which legislation is enacted. Necessity is the mother of invention; so is reason the necessity for legislation. Legislation involves a choice of values. Those values depend upon the values of a given society. Its interpretation and construction must thus take account of its province as a tool for the development of society. To understand an Act of Parliament is to understand the law of language, the language of the law and the law in language.

__________________________________________________________________________________________________________________________________________

37 Fordyce v. Bridges 1 HL Cas. 1. 38 Director of Public Prosecutions v. Schildkamp [1971] AC 1 at p.10. 39 Attorney-General v. Ernest Augustus (Prince) of Hanover [1987] AC 436.

Appendix A Classification of Statutes

Affirmative statutes An affirmative statute is an Act of Parliament drafted in affirmative or mandatory terms. It commands the doing of an act or declares the conduct or action required by the law. It is opposed to a Negative statute which is one that prohibits the doing of an act.

Criminal statutes These are Acts of Parliament, in some jurisdictions referred to as Codes, such as the Criminal Code or the Criminal Procedure Code, which define, classify and provide for criminal offences and the sanctions attached to each offence. In a Procedure Code the law governing the procedures to be followed in the prosecution of crimes is set out and the procedural rules for the trial of criminal offences are dealt with. In some cases it contains the rules of court dealing with such matters as arrests, detention, searches, the questioning of persons suspected of having committed as a criminal offence, and the procedure for the granting of bail.

Declaratory statutes A declaratory statute is enacted for the purpose of removing doubts or settling the law where there are conflicting decisions of the courts. It declares what the law is on a particular matter. It may state categorically what the Common Law is on a particular matter or state the meaning or effect of a provision of an Act of Parliament. A declaratory statute is also used to correct what is considered to be a judicial error. It is normal to have a preamble to a declaratory statute to explain why the statute is being declared and enacted.

Enabling statutes These are pieces of legislation enacted to empower agencies, corporations or persons to do what they could not do before the enactment of the Act. They can prescribe imperative or absolute formalities or formalities which are merely directory.

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Understanding Statutes

Expository statutes These are like declaratory statutes. They are enacted to explain the meaning of a previous provision of an Act of Parliament or its tenure. They may also declare the extent of the application of a previous Act.

General statutes Most Acts of Parliament are general statutes. They apply to the people of a given jurisdiction as a whole. There are no limits as to area or effect in the application of a general statute as regards a particular jurisdiction.

Local statutes A local statute is one that operates over a particular area of a jurisdiction and does not apply to the whole country. (However, the term ‘local law’ or ‘municipal law’ is used in contradistinction to laws which operate in the sphere of international law.)

Negative statutes These Acts are expressed in negative terms. They prohibit the doing of an act, declaring what shall not be done.

Penal statutes Like criminal statutes, penal statutes in general define criminal offences and the sanctions applicable to those offences. They deal with offences of a public nature or acts against the State which are prohibited.

Perpetual statutes Most statutes remain in force ‘for ever’. They contain no provision for their repeal or as to their duration. They operate without limitation as to time, unlike temporary statutes which by their nature have temporary operation (e.g. an Appropriation Act).

Personal statutes These have for their objects a particular person. The operation of a personal statute affects only the person named, that is, it is for that person’s sole benefit or disadvantage.

Classification of statutes

191

Private statutes Private statutes are like personal statutes in that they operate only on particular persons or private concerns. They operate to administer, define, enforce or regulate the relationship among certain associations, corporations or individuals. The term is used in contradistinction to public statutes. A private statute needs to be proved in court. It is not judicially noticed.

Public statutes A public statute, like a general statute, states a universal rule applicable to the jurisdiction as a whole. It does not restrict its application to certain individuals or a particular class of people. It does not concern itself with particular persons nor does it affect people’s private rights, except in a general way. Public statutes are concerned with organisation of the affairs of government and the relationship that exists between the government and the public as a whole. They operate in the sphere of public law and are not restricted to a particular area of the jurisdiction. Public statutes are judicially noticed.

Punitive statutes Punitive statutes, like penal statutes, relate to punishment and impose penalties, in some cases, including forfeiture.

Real statutes These statutes deal principally with real property and only with people in so far as they relate to issues of property.

Reference statutes These statutes are in the area of referential legislation: they refer to other statutes, making the referred statute part of the legislation concerned. In such cases parts or the operation of other Acts of Parliament are made part of the legislation. In other words parts of an Act of Parliament are incorporated or adopted in the legislation.

Remedial statutes Remedial statutes, as the name implies, provide the means or the procedures to be used or applied in order to obtain redress or relief. They afford remedies

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Understanding Statutes

or improve existing remedies for the enforcement of rights. They do not modify the existing law, nor affect substantive rights, but merely provide the methods for obtaining redress.

Revised statutes Revised statutes are the result of Statute Law Revision. The whole corpus of the statute law is revised, collected into Chapters and arranged in subjectmatter order. The existing statute law as so revised and arranged is enacted as a whole and supersedes the separate Acts of Parliament.

Special statutes Special statutes are like Private Acts of Parliament. They are enacted for individual cases or for particular purposes rather than for the public as a whole.

General Statutes were originally classified as general and special. General statutes were judicially noticed by the judges in much the same way that they noticed the Common Law. Special statutes were treated as exceptions to the general law and would thus require proof.1 In time statutes were classified as Public statutes and General statutes to distinguish them from Private statutes and Special statutes. It is obvious from the above classifications that statutes can be broadly classified as (a)

public general statutes;

(b)

public local statutes;

(c)

public special statutes;

(d)

private local statutes;

(e)

special local statutes;

(f)

private personal statutes.

All these lend themselves to two main categories of statutes: (A)

statutes which apply to the public at large as one unit, whether directly or indirectly. The courts take judicial notice of these statutes. Their common characteristic is that

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1

Craies on Statute Law p 55.

Classification of statutes

193

(a) they operate on all persons or things or upon all persons of a class; (b) they operate only on a particular class of persons or a particular class of things; (c) they operate only in a given part of a jurisdiction. (B)

statutes which deal more with private interests and as such are not judicially noticed and need to be pleaded.

A further classification is possible: 1.

Public statutes

(a)

general statutes;

(b)

special statutes, private or local;

(c)

local statutes, or special statutes.

2.

Private statutes

(a)

special statutes;

(b)

personal statutes.

The Classification can be further narrowed down: (a)

public general statutes;

(b)

local statutes;

(c)

private and personal statutes.

Public statutes, whether general, special or local, have various characteristics: (a)

temporary or perpetual;

(b)

retro-active, retrospective or prospective;

(c)

declaratory;

(d)

permissive;

(e)

prohibitive;

(f)

remedial;

(g)

directory;

(h)

mandatory;

(i)

repealing;

(j)

affirmative or negative;

(k)

civil or penal.

Statutes can also be classified under subject, such as statutes dealing with real property etc.

Appendix B Note – This is a preliminary Draft of a Bill for an Interpretation Act. A student should be able to find as many faults as possible in the Draft. It should be a pleasant exercise. Note the placement of the marginal notes. It is the practice in some jurisdictions.

A Bill for an Interpretation Act Arrangement of Clauses Clause 1.

Short title

2. 3. 4.

Meaning of certain expressions Application of Act Application of rules of construction

Interpretation

Enacting Clauses 5.

Words of enactment

Public and Private Acts 6. 7.

Public Acts Provisions in private Acts

Application 8. 9. 10.

Application of enactments References to Head of State Substantive enactments

Aids to Construction 11. 12. 13.

Aids to interpretations or construction References in enactments Amending provisions

Operation of Statutes 14. 15. 16. 17. 18. 19. 20. 21. 22.

Date of commencement of enactments Publication and Commencement Expiration of enactments Exercise of powers before commencement of enactment Statutory functions Errors and omissions Provisions as to holders of offices Effect of words of incorporation Offences and penalties

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Understanding Statutes

Procedure of Courts etc. 23. 24. 25. 26.

Rules of procedure of courts and tribunals Service of documents Deviation in forms Oaths, affirmations and declarations

Repeals etc. 27. 28. 29.

Cessation of operation of enactments Effect of repeal Effect of substituting enactment

Enactment always Speaking 30. 31.

Enactment always speaking Expressions in statutory instruments

Application of Definitions etc. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

Application of interpretation provisions Parts of speech Names commonly used Rules as to gender and number Construction of “shall” and “may” Distances Time Statutory boards, etc. Definitions for legislative purposes Definitions for judicial purposes Definitions for executive purposes References relating to land Miscellaneous definitions Assignment of Ministerial responsibilities

Delegation etc. 46. 47. 48. 49.

Delegation of functions Signification of delegation Instruments under the Public Seal Citation of Acts

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197

DRAFT OF A BILL FOR AN ACT to provide for the operation and interpretation of enactments and for other matters connected therewith. ENACTED by the Parliament of [Ruritania]. Short title 1. This Act may be cited as the Interpretation Act, [...].

Interpretation Meaning of certain expressions 2. In this Act, unless the context otherwise requires, ‘Act’ means an Act enacted by Parliament; ‘Assent’ means the Assent of the [Head of State]; ‘constitutional instrument’ means an instrument made pursuant to a power conferred in that behalf by the Constitution; ‘enact’ includes to issue, make or establish; ‘enactment’ means an Act of Parliament, or a statutory instrument, or a constitutional instrument, or a provision of an Act of Parliament, or of a constitutional instrument, or of a statutory instrument; ‘instrument’ includes a notice, scheme, Rules, Regulations, By-Laws or a Proclamation, an order, or a warrant, other than an order made or a warrant issued by a court of competent jurisdiction; ‘private Act’ means an Act for the purpose of affecting or benefiting a particular person passed in accordance with the Standing Orders of [both Houses of] Parliament; ‘statutory instrument’ means an instrument made, whether directly of indirectly, under a power conferred by an Act of Parliament; ‘statutory document’ means a document issued under an Act, other than a statutory instrument or an order of a court of competent jurisdiction. Application of this Act 3 (1) This Act applies to an enactment whether enacted before or after the coming into force of this Act, unless a contrary intention appears in that enactment.

198

Understanding Statutes

(2) This Act applies to this Act as it applies to an enactment as specified in subsection (1) and references in this Act to an enactment so passed shall be construed accordingly. Application of rules of construction 4. Nothing in this Act shall be construed as excluding the application to an enactment of a rule of interpretation or construction applicable thereto and not inconsistent with this Act.

Enacting Clauses Words of enactment 5 (1) The words of enactment shall follow the Preamble where there is one, or the Long Title to the Act, and the several sections within the body of the Act shall follow in a concise and enunciative form. (2) In a Bill presented to the [Head of State] for the Assent, other than a Bill presented under article … of the Constitution, the words of enactment shall be, ‘Enacted by the Parliament of [Ruritania.]’ (3) In a Bill presented to the [Head of State] for the Assent under article … of the Constitution, the words of enactment shall be, ‘Enacted by the Parliament of [Ruritania] in accordance with the provisions of article … of the Constitution.’ (4) In a Bill presented to the [Head of State] for the Assent under article … or … of the Constitution, the words of enactment shall be, Enacted by the [Head of State] by and with the advice and consent of the [House of Representatives] in accordance with the provisions of article … or article … of the Constitution and by the authority of the same.’ (5) In a Bill passed in accordance with the provisions of article … of the Constitution, the words of enactment shall be ‘Enacted by the [Senate and the House of Representatives] in accordance with the provisions of article …. of the Constitution and by the authority of the same.’

Public and Private Acts Public Acts 6. An Act is a public Act and shall be judicially noticed as such, unless the contrary is expressly provided by the Act. Provisions in private Acts 7. A provision in a private Act does not affect the rights of a person not specifically mentioned in the private Act.

A Bill for an Interpretation Act

Application Application of enactments 8. An enactment shall, unless the contrary intention appears, apply to the whole of [Ruritania.] References to [Head of State] 9 (1) A reference in an enactment to the [Head of State] shall be construed as a reference to the [Head of State] for the time being in office. (2) An enactment does not bind or in any manner affect the [Crown] [Republic] [State] or the rights and prerogatives of the [Crown] [Republic] [State] unless it is expressly stated therein that the [Crown] [Republic] [State] is bound thereby. (3)

This Act binds the [Crown] [Republic] [State].

(4) A private Act shall be construed as containing a saving for the rights of the [Crown] [Republic] [State]. Substantive enactments 10. A provision of an enactment has effect as a substantive enactment without introductory words.

Aids to Construction Aids to interpretation or construction 11 (1) Where a court is concerned with ascertaining the meaning of an enactment, the court may have recourse to (a)

all indications provided by the enactment as printed, published and distributed by the Government Printer;

(b)

a report of a Commission, Committee or other body appointed by Government or authorised by Parliament, which has been presented to Government or laid before Parliament;

(c)

a relevant treaty or other international agreement which has been ratified by Parliament or is referred to in the enactment of which copies have been presented to Parliament or where the Government is a signatory to the treaty or other international agreement;

(d)

an agreement which is declared by the enactment to be a relevant document for the purposes of that Act.

(2) A court may, where it considers the language of an enactment to be ambiguous or obscure, have reference to and consider (a) the legislative antecedents of the enactment; (b) pre-parliamentary material relating to the enactment;

199

200

Understanding Statutes

(c)

text-book, or other work of reference, a report or a memorandum published by authority in reference to the enactment, and any papers laid before Parliament in reference to the enactment; and

(d)

the parliamentary debates prior to the passing of the enactment.

(3) Where a court has recourse to parliamentary debates under subsection (2) the legislative intention lying behind the ambiguous or obscure words must be clearly disclosed in the parliamentary material and the statement shall be one made by the Minister or other promoter of the Bill. References in enactment 12 (1) A reference in an enactment to any other enactment shall be construed as a reference to that other enactment as amended by or under any other enactment, including the enactment in which the reference is made. (2) A reference in an enactment to a statute of general application or to an instrument made under that statute, shall be construed as a reference to that statute or instrument as it applies to [Ruritania]; and that statute or instrument shall be read with the requisite alteration, modification or adaptation so as to make that statute or instrument applicable to the circumstances. (3) Where in an enactment reference is made to a provision of a statute of general application and that provision is subsequently repealed and re-enacted without substantial modification that reference shall, if the context so requires, be construed as a reference to the provision as so re-enacted. (4) A reference in an enactment by number or letter to a Part, section, subsection, paragraph, sub-paragraph or other division of any other enactment or of a statute of general application shall be construed as a reference to that Part, section, subsection, paragraph, sub-paragraph or other division of that other enactment or statute as printed by authority. (5) A reference in an enactment by number or letter to two or more Parts, divisions, sections, subsections, paragraphs, subparagraphs, Schedules, instruments or forms shall be construed as including the number or letter first mentioned and the number or letter last mentioned. (6) Where in an enactment reference is made to a Part, division, section, Schedule or form without anything in the context to indicate that a reference to a Part, division, section, Schedule or form of some other enactment is intended, the reference shall be

A Bill for an Interpretation Act

construed as a reference to the Part, division, section, Schedule or form of the enactment in which the reference is made. (7) Where in a section of an enactment reference is made to a subsection, paragraph, sub-paragraph or other division without anything in the context to indicate that a reference to a subsection, paragraph, sub-paragraph or other division of some other section or provision is intended, the reference shall be construed as a reference to the subsection, paragraph, sub-paragraph or other division of the section in which the reference is made. (8) Where in a Schedule or Part of a Schedule to an enactment reference is made to a paragraph, sub-paragraph or other division without anything in the context to indicate that a reference to a paragraph, sub-paragraph or other division of some other enactment or division is intended, the reference shall be construed as a reference to the paragraph, sub-paragraph or other division of the Schedule or the part of the Schedule in which the reference is made. (9) Where in an enactment reference is made to a statutory instrument or statutory document, without anything in the context to indicate that a reference to a statutory instrument or statutory document made under some other enactment is intended, the reference shall be construed as a reference to the statutory instrument or statutory document, made under the enactment in which the reference is made. (10) A reference in an enactment to a power exercisable, or to a statutory instrument or statutory document made or issued or an act or a thing done, under an enactment or a statute of general application, shall include a reference to a power exercisable, a statutory instrument or statutory document made or issued or an act or a thing done, by virtue of that enactment or statute or of a statutory instrument or statutory document made or issued under or by virtue of that enactment or statute. Amending provisions 13 (1) An Act may be amended, altered or repealed in the same session of Parliament. (2) An amending enactment shall, so far as consistent with the tenor thereof, operate and be construed as part of the enactment which it amends and, without prejudice to subsection (1) of section 12 shall, as from the date on which it comes into operation, have effect accordingly for the purpose of the construction and operation of any other enactment which refers to, or is incorporated with, the enactment which it amends.

201

202

Understanding Statutes

Operation of Enactments Date of commencement of enactments 14 (1) The date of the commencement or coming into operation of an Act shall be the date on which the Assent is given or as otherwise specified in the Act. (2) The Assent and the day, month and year thereof shall be inscribed on an Act and the inscription shall be taken to be part of the Act. (3) The date of the making of a statutory instrument shall be the date therein expressed as the date of the making thereof, but where the instrument is made by two or more authorities jointly and is therein expressed to have been made by those authorities on different dates, the date of the making thereof shall be the last date so expressed. (4) Where a statutory instrument made by an authority or a person requires the concurrence or approval of any other authority or person, the concurrence or approval shall be formally inscribed on the instrument, (a)

on or before the date of the making thereof; or

(b)

within one month after the making of the instrument, if the other authority or person has before that date indicated an intention to concur in or approve of the making of the instrument. Publication and Commencement 15 (1) An enactment shall be published in the Gazette and subject to section 14, and unless the enactment otherwise provides, shall take effect and come into operation on the date of the publication. (2) Where an enactment is expressed to come into force or operation on a particular day, whether that day is before or after the date of the passing of that enactment, or where the enactment is a statutory instrument, of the making thereof, and whether that day is named in the enactment or is to be appointed or fixed or ascertained in any other manner, the enactment shall be construed as coming into force immediately on the expiration of the day before that particular day. (3)

Where an Act provides

(a)

that it is to come into force or operation on a day or date to be fixed or determined, or appointed by Proclamation, or

(b)

that it is not to come into force or operation until a day or date to be so fixed, determined or appointed,

that Proclamation

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(c)

may apply to the whole of, or to a provision of, the Act, and may be issued at different times in respect of that provision; or

(e)

may specify different dates in respect of different provisions of the Act. Expiration of enactments 16 (1) Where an enactment is expressed to expire or otherwise cease to have effect on a particular day, the enactment shall, except as provided by subsection (2), be construed as ceasing to have effect immediately on the expiration of that day. (2) Where a Bill is introduced into a session of Parliament for the continuance of an Act limited to expire in that session and the Act expires before the Bill receives in that session the Assent and is published in the Gazette, then, subject to subsection (3), that Act shall be deemed to have continued as fully and effectively in operation as if the Bill had received the Assent and been published in the Gazette before the Act expired. (3) Subsection (2) shall not operate so as to render a person liable under the provisions of an Act which has expired to a penalty or forfeiture by reason of an act done by that person before the date on which the Bill for the continuance of that Act receives the Assent and is published in the Gazette. Exercise of powers before commencement of enactment 17. Where an enactment is not in force and it contains provisions conferring power to make Regulations or to do any other thing, that power may, for the purpose of making the enactment effective upon its commencement be exercised at any time before its commencement, but Regulations so made or a thing so done has no effect until the commencement of the enactment, except in so far as may be necessary to make the enactment effective upon its commencement. Statutory functions 18 (1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed, as occasion requires. (2) Where an enactment confers a power to make a statutory instrument, the power shall be construed as including a power, exercisable in the like manner and subject to the like consent and conditions, to amend, alter, rescind, or revoke that statutory instrument and to make other statutory instruments, but this subsection shall not apply to an order which is not made by a rulemaking authority in the exercise of a statutory power which is of a legislative character.

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(3) Where power is given to a person or an authority to do an act or thing, or enforce the doing of an act or thing, the power so given includes all other powers as are reasonably necessary to enable that person or authority to do that act or thing, or enforce the doing of that act or thing, or are incidental to the doing or enforcement thereof. (4) Where an enactment authorises or requires an act or thing to be done collectively by more than three persons, a majority of those persons may do that act or thing, unless a quorum is fixed by that or any other enactment. (5) A power conferred by an enactment to make a statutory instrument or issue a statutory document may be exercised (a)

either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case; and

(b)

so as to make, as respects the cases in relation to which it is exercised,

(i)

the full provision to which the power extends or any less provision (whether by way of exception or otherwise);

(ii)

the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provision as respects the same case or class of case for different purposes of the enactment;

(iii) any such provision either unconditionally or subject to any specified condition. (6) Where an enactment confers upon a person or authority power to make a statutory instrument, the statutory instrument so made (a)

shall be construed subject to the enactment under which it is made;

(b)

shall not exceed the power so conferred.

(7) Where an enactment confers upon a person or an authority power to make a statutory instrument, an act done under a statutory instrument so made shall be deemed to have been done under that enactment in so far as the act done is not inconsistent with, or in contravention of, the statutory instrument so made. (8) A statutory instrument or a statutory document which is expressed or purports to be made or issued by a person or an authority under a specific enactment, shall be deemed also to be made or issued under all powers thereunto enabling that person or authority.

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(9) Where an enactment confers a power upon a person or an authority to make a statutory instrument for a general purpose and also for a special purpose incidental thereto, the enumeration of the special purposes shall not be construed as derogating from the generality of the power conferred with respect to the general purpose. (10) Where an enactment confers a power to make a statutory instrument that power includes a power to provide (a)

a punishment by way of a fine or imprisonment or both for a contravention of that statutory instrument;

(b)

that an offence against that statutory instrument may be tried summarily or on an indictment. Errors and omissions 19 (1) Where an enactment confers a power or imposes a duty upon a person to do an act or thing of an administrative or executive character or to make an appointment, the power or duty may be exercised or performed in order to correct an error or omission in a previous exercise or performance of the power or duty. (2) The substantive rights of, or the procedures for redress by, a person who has suffered loss or damage or is otherwise aggrieved as a result of an omission or error corrected under subsection (1) shall not be affected as a result of the correction of that omission or error and an investigation, a legal proceeding or a remedy in respect of a right, privilege, obligation or liability shall continue as if the omission or error had not been corrected. Provisions as to holders of offices 20. (1) Words in an enactment which authorise the appointment of a person to an office confer, in addition, on the authority in whom the power is vested, (a)

a power, at the discretion of the authority, to remove or suspend that person;

(b)

a power, exercisable in the like manner and subject to the like consent and conditions applicable to the appointment,

(i)

to reappoint or reinstate that person; or

(ii) to appoint any other person, whether substantively or in an acting capacity; (iii) to determine the remuneration and the terms of payment of the remuneration applicable to the office. (2) Where the power of appointment is exercisable only upon the recommendation or subject to the approval, consent or concurrence of some other authority or person, the power of removal shall be

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exercised only upon the recommendation or subject to the approval, consent or concurrence of that other authority or person. (3) In an enactment a reference, without qualification, to the holder of an office includes a reference to a person for the time being holding that office, and, in particular (a)

words in an enactment directing, or empowering the holder of an office to do an act or thing, or otherwise applying to the holder of that office, shall apply to the successors in office and to a deputy;

(b)

where an enactment confers a power or imposes a duty on the holder of an office, as such, the power may be exercised and the duty shall be performed by the person for the time being charged with the exercise or performance of the powers and duties of the office.

(4) Where the change of title of a public officer is notified in the Gazette by a Government Notice setting out the former title and the substituted title of the officer, a reference to the former title in an enactment or in a document made or issued under that enactment shall be construed as a reference to the substituted title. (5) Where a public officer is by reason of absence or incapacity through illness or any other sufficient cause unable to perform a function conferred upon that officer by or under an enactment, that function shall be performed by a public officer or person designated by the appropriate authority subject to the conditions, exceptions or qualifications specified by the appropriate authority. Effect of words of incorporation 21 (1) Where an enactment contains words establishing, or providing for the establishment of, a body corporate the words operate (a)

to vest in that body when established

(i)

the power to sue and be sued, to contract and be contracted with, by its corporate name;

(ii) the right to have a common seal and to alter or change that seal, which common seal shall be judicially noticed, and shall authenticate a document to which it is affixed and attested in accordance with the law applicable to the attestation of documents; (iii) the right to acquire and hold real or personal property for purposes for which the corporation is constituted and to dispose of or charge that property; (iv) the right to regulate its own procedure and business; and

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(v)

the right to employ the necessary staff for the performance of its functions;

(b)

to vest in a majority of the members of that body corporate the power, subject to a quorum fixed by the enactment under which it is established or by any relevant standing orders, to bind other members thereof; and

(c)

to exempt from personal liability for the debts, obligations or acts of that body not being offences committed by that body corporate, the members thereof who do not contravene the provisions of the enactment under which that body is established.

(2)

Subsection (1) does not

(a)

prevent additional powers being conferred by an enactment on that body; or

(b)

prevent the powers conferred by the subsection being limited by an enactment; or

(c)

prejudice or affect the liability of a member of that body to be surcharged with the payment of an amount which may be disallowed in the accounts of that body by an auditor whether acting in pursuance of an enactment or otherwise. Offences and penalties 22 (1) Where an act or omission constitutes an offence under two or more than two enactments or under an enactment or at common law, the offender is liable to be prosecuted and punished under either or any of those enactments or at common law, but shall not be punished twice for the same offence. (2) Where an offence under an enactment is committed by a body corporate the directors, the general manager, the secretary or other senior officer of that body corporate shall be deemed to have personally committed that offence. (3) A person shall not be convicted of an offence pursuant to subsection (2) where it is proved to the satisfaction of the court that that person did not consent to, or did not connive at, the commission of the offence, or did exercise such reasonable diligence as ought in the circumstances to have been exercised to prevent the commission of the offence, having regard to the nature of the offence. (4) For the purposes of subsections (2) and (3), a body corporate includes a firm or partnership and those subsections shall be construed accordingly in the case of a firm or a partnership.

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(5) Subsections (2) and (3) shall not operate so as to affect the liability of the members of the body corporate. (6) A person shall not be charged under subsection (2) except with the consent of the [Director of Public Prosecutions] [Attorney-General]. (7) An enactment creating criminal liability for an act or omission which, apart from that enactment, would give rise to civil liability shall not operate to prejudice the civil liability; but this subsection shall not be construed as excluding the application of a rule of law which restricts the right to take civil proceedings in respect of an act or omission which constitutes a felony. (8) Where an enactment provides a punishment for an offence against the enactment, the offence is punishable by a punishment not exceeding that so provided. (9) Where an enactment creates an offence, an attempt to commit that offence is an offence under the enactment and the attempt is punishable as if the offence itself had been committed. (10) Where under an enactment an animal or a thing (a)

is or is ordered by a competent authority to be confiscated or forfeited, the forfeiture shall be to the state;

(b)

ordered or deemed to be forfeited is sold, the net proceeds of the sale shall be paid into and form part of the Consolidated Fund.

(11) Nothing in subsection (10) shall prejudice an enactment under which the whole or a part of a fine, penalty or forfeiture or the proceeds of a forfeiture is recoverable by a person or may be granted by an authority to a person. (12) A fine or pecuniary penalty imposed by or under an enactment shall be paid into the Consolidated Fund. (13) Where in an enactment an offence is declared to be punishable on indictment or summary conviction, the procedure in respect of the trial and punishment of the offence and the recovery of the penalty, and all matters incidental to, or arising out of the trial and punishment of the offence or the recovery of the penalty, shall be in accordance with the law relating to the trial of offences on indictment or the trial of summary offences.

Procedure of Courts and Tribunals Rules of procedure of courts and tribunals 23 (1) Where an enactment confers jurisdiction on a court or other tribunal or extends or varies that jurisdiction, the authority having

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power to make Rules or Orders regulating the practice and procedure of that court or tribunal may make the Rules or Orders that appear to the authority to be necessary for regulating the practice and procedure of that court or tribunal in the exercise of the jurisdiction so conferred, extended or varied, and it shall not be necessary for any other enactment to confer power on the authority to make Rules or Orders for these purposes. (2) An authority empowered to make Rules or Orders regulating the practice and procedure of a court or a tribunal shall not, in the exercise of that power, make without the concurrence of the Minister responsible for Finance an order which (a)

directs money to be paid out of, or in aid of, the Consolidated Fund; or

(b)

prescribes or alters court fees.

(3) The validity of Rules or Orders made pursuant to subsection (1) shall not in proceedings in a court or a tribunal be impugned either by the court or tribunal or by a party to the proceedings on the ground only that the concurrence of the Minister responsible for Finance has not been given or is not expressed to have been given. Service of documents 24 (1) Where an enactment authorises or requires a document to be served by post that document shall be sent by registered post to the person on whom the document is to be served at that person’s last known place of abode or business. (2) Where an enactment authorises or requires a document to be served on a person without directing it to be served in a particular manner the service of that document may be effected (a)

by personal service; or

(b)

by post in accordance with subsection (1); or

(c)

by leaving it with some adult person at that person’s usual or last known place of abode or business; or,

(d)

in the case of a corporate body, or of an association of persons (whether incorporated or not) by delivering it to the secretary or clerk of the body corporate or association at the registered or principal office of the body corporate or association or serving it by post on that secretary or clerk at that office; or,

(e)

where it is not practicable after reasonable enquiry to ascertain the name or address of an owner, a lessee, or an occupier of premises on whom the document ought to be

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served, by addressing the document to that person by the description of ‘owner’ or ‘lessee’ or ‘occupier’ of the premises (naming them) to which the document relates, and by delivering it to some person on the premises or, if there is no person on the premises to whom it can be delivered, by affixing it, or a copy of it, to some conspicuous part of the premises. Deviation in forms 25. Where a form is prescribed or specified by an enactment, deviations therefrom not materially affecting the substance nor calculated to mislead shall not invalidate the form used. Oaths, affirmations and declarations 26 (1) Where an enactment authorises or requires evidence to be taken on oath, or authorises or directs an oath to be made, taken or administered, the oath may be administered, and a certificate or acknowledgement of its having been made, taken or administered may be given by a person authorised by the enactment to take the evidence or by a judge of a court of competent jurisdiction, or a notary public, or a commissioner for oaths or a person so authorised by any other enactment. (2) In an enactment the word ‘oath’ or ‘affidavit’ includes an affirmation or a declaration. (3) A reference in an enactment to a statutory declaration shall be construed as a reference to a declaration made (a)

by virtue of the enactment relating to statutory declarations, or

(b)

under the enactment relating to the taking of evidence where the declaration is made before the appropriate competent authority.

(4) A power conferred by an enactment upon a justice of the peace to administer an oath or an affirmation, or to make an affidavit or a declaration, may be exercised by a notary public or a commissioner for oaths.

Repeals etc. Cessation of operation of enactments 27. Where in an enactment it is declared that the whole or a part of any other enactment is to cease to have effect, that other enactment shall be deemed to have been repealed to the extent to which it is so declared to cease to have effect. Effect of repeal 28 (1) Where an enactment repeals or revokes an enactment, the repeal or revocation shall not, save as in this section otherwise

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provided, (a)

revive an enactment or a thing not in force or existing at the time at which the repeal or revocation takes effect;

(b)

affect the previous operation of the enactment so repealed or revoked, or anything duly done or suffered thereunder;

(c)

affect a right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed or revoked;

(d)

affect an offence committed against the enactment so repealed or revoked, or a penalty or a forfeiture or a punishment incurred in respect thereof; or

(e)

affect an investigation, a legal proceeding or a remedy in respect of a right, a privilege, an obligation, a liability, a penalty, a forfeiture or a punishment;

and the investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked. (2) Nothing in subsection (1) shall be taken to authorise the continuance in force after the repeal or revocation of an enactment of an instrument made under that enactment. (3) Where an enactment expires, lapses or otherwise ceases to have effect, this section shall apply as if that enactment had then been repealed or revoked. (4) The inclusion in the repealing provisions of an enactment of an express saving with respect to the repeals affected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals. Effect of substituting enactment 29 (1) Where an enactment repeals or revokes and re-enacts, with or without modification, an enactment, a reference in any other enactment or statutory document to the enactment so repealed or revoked shall, without prejudice to the operation of subsections (2) and (3), be construed as a reference to the enactment as re-enacted. (2) Where an enactment repeals or revokes an enactment, in this subsection and in subsection (3) referred to as the ‘old enactment’, and substitutes another enactment therefor by way of amendment, revision or consolidation, (a)

a person acting under the old enactment shall continue to act as if appointed under the enactment so substituted;

(b)

a bond or a security given by a person appointed under the

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old enactment remains in force and all books, papers and things used or made under the old enactment shall continue to be used so far as is consistent with the enactment so substituted; (c)

a proceeding taken under the old enactment shall be prosecuted and continued under and in conformity with, the enactment so substituted, so far as it may be done consistently with the substituted enactment;

(d)

in the recovery or enforcement of penalties and forfeitures incurred, and in the enforcement of rights, existing or accruing under the old enactment, or in any other proceeding under the old enactment, the procedure established by the enactment so substituted shall be followed so far as it can be adapted; and

(e)

where a penalty, a forfeiture or a punishment is reduced or mitigated by a provision of the enactment so substituted, the penalty, forfeiture or punishment, if imposed or awarded after the repeal or revocation, shall be reduced or mitigated accordingly.

(3) Without prejudice to subsection (2), where an enactment repeals or revokes an enactment and substitutes another enactment therefor by way of amendment, revision or consolidation, (a)

all statutory instruments or statutory documents made, issued, confirmed or granted under the old enactment and all decisions, authorisations, directions, consents, applications, requests or things made, issued, given or done thereunder shall, in so far as they are in force at the commencement of the enactment so substituted, and are not inconsistent therewith, have the like effect and the like proceedings may be had thereon and in respect thereof as if they had been made, issued, confirmed or granted or made, issued, given or done under the corresponding enactment so substituted; and

(b)

a reference to the old enactment in an unrepealed or unrevoked enactment shall, in relation to a subsequent transaction, matter or thing, be construed as a reference to so much of the enactment so substituted as relates to the same subject-matter as the old enactment; and, if nothing in the enactment so substituted relates to the same subject-matter, the old enactment shall stand good, and be read and construed as unrepealed or unrevoked in so far, and in so far only , as is necessary to support, maintain or give effect to the unrepealed or unrevoked enactment.

A Bill for an Interpretation Act

Enactments always Speaking etc. Enactment always speaking 30. An enactment shall be construed as always speaking and anything expressed in the present tense shall be applied to the circumstances as they occur, so that effect may be given to each enactment according to its true spirit, intent and meaning. Expressions in statutory instruments 31 (1) Where an enactment confers power to make a statutory instrument or issue a statutory document, unless a contrary intention appears, (a)

expressions used in the statutory instrument or statutory document have the same respective meanings as in the enactment; and

(b)

the expression ‘the Act’ if used in the statutory instrument or statutory document shall be construed as referring to the Act under which the instrument is made or the document is issued. Application of Definitions Application of interpretation provisions 32 (1) Definitions or rules of interpretation contained in an enactment apply to the construction of the provisions of the enactment which contain those definitions or rules of interpretation. (2) An interpretation section or provision contained in an enactment shall be read and construed as being applicable (a)

only if the contrary intention does not appear in the enactment; and

(b)

to all other enactments relating to the same subject-matter, unless a contrary intention appears in the enactment.

Parts of speech 33. Where a word is defined in an enactment, other parts of speech and grammatical variations of that word and cognate expressions shall have corresponding meanings in that enactment. Names commonly used 34. In an enactment, a name commonly applied to a country, place, Government department, body, corporation, society, Minister, officer, functionary, person, party, statutory provision, or other thing means the country, place, Government department, body, corporation, society, Minister, officer, functionary, party, statutory provision or thing to which the name is commonly applied, whether or not the name is the formal or unabbreviated designation thereof.

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Rules as to number and gender 35. (1) Words in an enactment importing (a)

male persons include female persons; and

(b)

female persons include male persons.

(2) Words in an enactment importing persons include male and female persons, corporations, whether aggregate or sole, and unincorporated bodies of persons. (3) A reference in an enactment to a party aggrieved includes a reference to a body corporate in every case where that body corporate is a party aggrieved. Construction of ‘shall’ and ‘may’ 36. In an enactment the expression ‘may’ shall be construed as permissive and empowering, and the expression ‘shall’ as imperative and mandatory. Distances 37. In the measurement of a distance for the purposes of an enactment, the distance shall be measured in a straight line on a horizontal plane. Time 38 (1) In an enactment, words relating to time and references to a point in time shall be construed as relating or referring to standard time. (2) In an enactment, the expression ‘standard time’ shall be construed as meaning the time specified by the appropriate authority to be the standard time. (3) Where in an enactment a period of time is expressed to begin on, or to be reckoned from, a particular day, that day shall not be included in the period. (4) Subject to subsection (6), where in an enactment a period of time is expressed to end on, or to be reckoned to, a particular day, that day shall be included in the period. (5) Where the time limited by an enactment for the doing of a thing expires or falls upon a Sunday or a public holiday, the time shall extend to and the thing may be done on, the first following day that is not a Sunday or a public holiday. (6) Where a period of time prescribed by an enactment for the doing of a thing does not exceed six days, Sundays and public holidays shall not be included in the computation of the period. (7) Where by an enactment a period of time is expressed as ‘clear days’ or is qualified by the term ‘at least’, both the first day

A Bill for an Interpretation Act

and the last day shall be excluded from the computation of the period. (8)

In an enactment

(a)

a reference to midnight, in relation to a particular day, shall be construed as a reference to the point of time at which that day ends;

(b)

a reference to a week-day shall be construed as a reference to a day that is not a Saturday or Sunday;

(c)

a reference to a month shall be construed as a reference to a calendar month;

(d)

a reference, without qualification, to a year, shall be construed as a reference to a period of twelve months;

(e)

a reference to a financial year shall be construed as a reference to a period of twelve months as specified in the enactment.

(9) In an enactment, the expression ‘public holiday’ means a day that under the provisions of an enactment or other law is, or is declared to be, or is proclaimed as, a public holiday. (10) An enactment requiring or authorising the doing of a thing but not prescribing or limiting the period within which that thing is to be done, or may be done, shall be construed as requiring or authorising that thing to be done with all convenient speed and not otherwise. (11) Subsections (1) and (2) shall have effect in relation to deeds and other legal instruments as they have effect in relation to an enactment. Statutory boards, etc. 39 (1) The functions of a statutory board shall not be affected by a vacancy in the membership of that statutory board. (2) A power conferred by or under an enactment upon an authority or a person to appoint the members of a statutory board includes (a)

the power to appoint the chairman of the statutory board; and

(b)

the power to appoint an individual person as an alternative member to act in the place of the member in respect of whom the alternate appointment is made.

(3) An alternative member when acting as such shall have and perform all the functions of the member in whose place the alternate appointment is made.

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(4) An authority or person empowered by or under an enactment to appoint or designate a person to be a member of a statutory board or to perform any other function may (a)

appoint or designate a person by name; or

(b)

appoint or designate a person by reference to an office;

and the person so appointed or designated may perform the function in respect of which the appointment or designation is made. Definitions for legislative purposes 40 (1) In an enactment, the expression ‘House’ means the lower or, as the case may be, the upper chamber of Parliament; ‘Parliament’ means Parliament as established under article...of the Constitution; ‘President’ means the President elected in accordance with article … of the Constitution; ‘session’ in relation to Parliament means the sittings of Parliament commencing when it first meets after a dissolution or prorogation of Parliament at any time and terminating when Parliament is dissolved or prorogued; ‘sitting’ in relation to Parliament includes a period during which either House is sitting continuously without adjournment and a period during which that House is in committee; ‘Speaker’ means the person elected as Speaker by members of Parliament.. (2) In an enactment the expression ‘statutory period’ in relation to a statutory instrument means a period of forty days or such other period as may be prescribed by the enactment. (3)

Where an enactment provides that a statutory instrument

(a)

shall be laid before Parliament, and

(b)

may be annulled or approved by a resolution of Parliament,

the computation of the period within which the instrument shall be laid or annulled or approved, shall not take account of a period when Parliament is dissolved or prorogued. (4) A reference in an enactment to the laying of a statutory instrument or a statutory document or a report, an account or other document before Parliament, shall be construed as a reference to the taking, during the existence of Parliament, of the action

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(a)

which, by or under a Standing Order, Sessional Order or other direction of the House before which the instrument or document is laid, constitutes the laying of the instrument or document before that House; or

(b)

which is accepted by virtue of the practice and the procedure of that House as constituting the laying.

(5) The expression ‘subject to an affirmative resolution’ when used in relation to a statutory instrument or a statutory document means that the instrument or document shall be laid before Parliament, and shall not come into operation unless it is approved by a resolution supported by the votes of not less than [one-half of all the members of each House]. (6) The expression ‘subject to a negative resolution’ when used in relation to a statutory instrument or a statutory document means that the instrument or document shall be laid before Parliament but it shall cease to have effect when each House by a resolution supported by the votes of not less than [one-half of all the members of each House] annuls the instrument or document. (7) The annulment of an instrument or document by virtue of subsection (6) shall not affect the validity of any thing done under the instrument or the document, or prejudice the making of a new instrument or document. Definitions for judicial purposes 41. In an enactment, the expression ‘Chief Justice’ means the Chief Justice appointed under article … of the Constitution; ‘committed for trial’ includes (a)

committed by a court of competent jurisdiction; or

(b)

committed on bail upon a recognisance to appear and stand trial before a court of competent jurisdiction;

‘court of summary jurisdiction’ means a magistrate exercising statutory summary jurisdiction; ‘Director of Public Prosecutions’ means the Director of Public Prosecutions appointed under article … of the Constitution; ‘High Court’ means the High Court of Justice established by article … of the Constitution; ‘indictable offence’ means an offence triable on indictment in accordance with …. ‘Justice’ includes the Chief Justice and any other Justice of the superior courts of record;

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‘Magistrate’ means a Magistrate appointed under …. ‘printed by authority of law’ means printed by the Government Printer; ‘Rules of Court’ when used in relation to a court means Rules made by the competent authority to regulate the practice and procedure of the courts; ‘statute of general application’ means …. ‘summary conviction’ means conviction of a summary offence; ‘summary offence’ means an offence triable otherwise than on indictment; ‘Supreme Court’ means the Supreme Court of Judicature established by article … of the Constitution; Definitions for executive purposes 42. In an enactment, the expression ‘appointed day’ for the purposes of an enactment means the day specified as such by the [Head of State] by Proclamation published in the Gazette; ‘Auditor-General’ means the Auditor General appointed under article … of the Constitution; ‘Cabinet’ means the Cabinet established by …. ‘Commonwealth’, means the countries specified or certified as Commonwealth countries in or under an Act of Parliament relating to membership of the Commonwealth; ‘Commonwealth country’ means a country that is a member of the Commonwealth; ‘Consolidated Fund’ means the Consolidated Fund established by article … of the Constitution; ‘Gazette’ includes the Gazette published by order of the Government and supplements thereto; ‘Government’ means an authority by which the executive authority of [Ruritania] is duly exercised; ‘Government Notice’ means an announcement, whether or not of a legislative character, published in the Gazette by or with the authority of the Government; ‘Government Printer’ includes a printer authorised by the Government Printer;

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‘Leader of the Opposition’ means the Leader of the Opposition appointed under article of the Constitution; ‘Minister’ includes the Prime Minister and any other Minister for the time being having responsibility for the subject-matter of the enactment in respect of which that expression is used; ‘payable by warrant’ means payable out of the Consolidated Fund upon the authority of a warrant under the hand of the Minister responsible for Finance; ‘Prime Minister’ means the Prime Minister appointed under article…of the Constitution; ‘prescribed’ means prescribed in or under the enactment in which that expression occurs; ‘prescribed by Parliament’ means prescribed by the authority of Parliament; ‘Proclamation’ means a Proclamation made by the [Head of State] under the Public Seal; ‘public corporation’ means a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or by any other public fund; ‘public interest’ includes a right or an advantage which enures or is intended to enure for the benefit generally of the whole of the people of [Ruritania]; ‘public office’ includes an office the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation established entirely out of public funds or moneys provided by Parliament; ‘public service’ includes service in a civil office of Government the emoluments attaching to which are paid directly from the Consolidated Fund or directly out of moneys provided by Parliament and service with a public corporation; ‘public officer’ includes the holder of a public office and a person appointed to act in that office; ‘Public Service Commission’ means the Public Service Commission established by article…of the Constitution; ‘Public Seal’ means the Public Seal of [Ruritania] References relating to land 43 (1) In an enactment, the expression ‘land’ includes messuages, tenements, and hereditaments, corporeal or incorporeal, of every

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kind and description and houses and other buildings of any tenure, and any estate, right, title or interest in, to or over land. (2)

In an enactment, the expression ‘registered land’ means land the title to which is registered under that enactment;

‘unregistered land’ means land the title to which is not registered under that enactment. Miscellaneous definitions 44. In an enactment, the expression ‘act’ where used in reference to an offence or civil wrong includes a series of acts, and words so used which refer to acts done extend to omissions; ‘coin’ means a coin which is legal tender in [Ruritania]; ‘commencement’ when used with reference to an enactment means the time at which that enactment comes into operation; ‘Commonwealth citizen’ means a person who by law has the status of a Commonwealth citizen; ‘consul’ or ‘consular officer’ includes consul-general, consul, viceconsul, consular agent, and a person authorised to discharge the duties of consul-general, consul or vice-consul; ‘contravention’ in relation to an enactment, includes a failure to comply with that enactment; ‘service by post’ means service in accordance with subsection (1) of section 24; ‘signature’ includes the making of a mark; ‘will’ includes a codicil; ‘writing’ or a term of like import includes words typewritten, printed, painted, engraved, lithographed, photographed or represented or reproduced by any mode of representing or reproducing words in a visible form; (2) In an enactment, the expression ‘access’ includes ingress, egress and regress; ‘assets’ includes property or rights of any kind; ‘costs’ includes fees, charges, disbursements, expenses or remuneration;

A Bill for an Interpretation Act

‘fault’ means wrongful act or default; ‘functions’ includes powers and duties; ‘goods’ includes movable property and animals; ‘individual’ means a natural person other than a corporation; ‘movable property’ means property of every description, including growing crops, except immovable property; ‘perform’ in relation to functions includes exercise; ‘sale’ includes exchange or barter; ‘surety’ means sufficient surety; ‘vessel’ means a ship, boat, lighter or other floating craft used or capable of being used for transport by water; ‘words’ when used in an amending enactment includes figures, punctuation marks and typographical, monetary, mathematical and scientific symbols. Assignment of Ministerial responsibilities 45. Notwithstanding anything to the contrary in an enactment, where a change in the assignment or responsibility for the business of government is notified in the Gazette by a Government Notice setting out the former assignment and the substituted assignment, a reference to the former assignment in an enactment and in a document made or issued under the enactment shall be construed as a reference to the substituted assignment from the date specified in the Government Notice.

Delegation etc. Power to delegate functions 46. Where by or under an enactment a function is conferred on a person or authority other than a function in relation to the hearing of a petition or the making of subsidiary legislation that person or authority may by instrument in writing delegate the performance of those functions to a person either by name or as the holder of an office as is specified in the instrument subject to such conditions, exceptions and qualifications as are so specified. Signification of delegation 47 (1) A delegation made under section 46 shall, within twenty-four hours, be published in the Gazette. (2) A delegation made under section 46 may be revoked or varied by the like instrument or order as is respectively specified in that section; and the revocation or variation shall, within twenty-four hours, be published in the Gazette.

221

222

Understanding Statutes

Instruments under the Public Seal 48 (1) A Proclamation, warrant or other instrument issued under the Public Seal shall be signified under the hand of the [Head of State]. (2)

Subject to subsection (1), a statutory instrument

(a)

made by the [Head of State], may be signified under the hand of a Minister;

(b)

made by the Cabinet, may be signified under the hand of the Secretary to the Cabinet.

(3) Prima facie evidence of a statutory instrument may be given in proceedings before a court by the production of a copy of the Gazette purporting to contain the statutory instrument.

Citation of Acts 49 (1) An Act may be cited by reference to its short title. (2) Where a statutory instrument is published in the Gazette in accordance with section 15, then (a)

without prejudice to any other enactment, the original of that instrument and a copy thereof printed by the Government Printer, is admissible in evidence without proof of the authority, signature or capacity of the person by whom the instrument is signed;

(b)

a copy of that instrument printed by the Government Printer shall, for all purposes, be evidence of the due making of that instrument and of its content; and

(c)

a copy of that instrument purporting to have been printed by the Government Printer shall be deemed to have been so printed unless the contrary is proved.

(4) In an enactment a description of, or citation from, any other enactment or from a document shall be construed as including the word, subsection, section, or other portion mentioned or referred to as forming the beginning or as forming the end of the portion comprised in the description or citation or as being the point from which or to which the portion extends.

Appendix C Bibliography

Adler, J., [1957] 38 Modern Law Review, 274 Allen, C. K., Law and Orders Austin, John, Jurisprudence Bacon, Francis, Essays Bible, 1 Corinthians, 14, 8-9 Bennion, F.A.R., Statutory Interpretation Blackstone, Commentaries 1766 Vol. 1 Burchfield, Robert, The English Language Carroll, Lewis, Through the Looking Glass Carter, James, Law: Its Origin, Growth and Function, Lecture IX Chafee, Z., ‘The Disorderly Conduct of Words’, 41 Col LR 381 Cockram, G.,The Interpretation of Statutes Coke, 4 Institutes Commonwealth Law Bulletin (1986) Coode, George, On Legislative Expression Comans, C.K., ‘The Power of the Commonwealth Parliament to make Retrospective or Retroactive Laws is well established’ 27 Australian Law Journal Corry, J.A., Administrative Law and The Interpretation of Statutes, (1936) 1 UTLJ 286 Crabbe, V.C.R.A.C. , Legislative Drafting ‘Has Parliament An Intention’ Commonwealth Caribbean Legal Studies Craies on Statute Law Crawford, E.T., Construction of Statutes Cross, Sir Rupert , Statutory Interpretation Denning, Lord, The Discipline of Law The Closing Chapter

224

Understanding Statutes

de Smith, S.A., Constitutional and Administrative Law Dickerson, Reed, Professionalising Legislative Drafting ‘The Difficulty of Choice Between And and Or’ A.B.A. Journal, 1960 Driedger, Elmer, The Composition of Legislation Driedger, Elmer, The Construction of Statutes Eliot, George , Mr. Gilfil’s Love-Story, Scenes of Clerical Life Fiadjoe, Albert K., ‘Judicial Approaches to Constitutional and Statutory Exclusion of Judicial Review in Commonwealth Caribbean Public Law’ Commonwealth Caribbean Legal Studies Freund, Ernest, ‘Prolegomena To A Science of Legislation’ 13 Illinois LR Gibb, S.J., ‘Parliamentary Material as Extrinsic Aids to Statutory Interpretation’, [1580] Stat LR Guardian Gazette, No. 27 Vol. 24 Guardian Weekly, Vol. 146, No. 4, Week ending 26 January 1992 Hansard Parliamentary Debates (3rd Series) Hewart, Lord, The New Despotism Ilbert, Courtenay, The Mechanics of Law Making Ilbert, Courtenay, Legislative Methods and Forms Kaufman, Gerald, The Listener, 29th March, 1984 Legislation and Legal Rights and Plain English, Victoria, Australia Lewis, Charles , The Truth About Statutory Interpretation, Guardian Gazette Locke, John, A Second Treatise of Government Maitland, F.W., Forms Of Action At Common Law Matthews, Law, Order and Liberty in South Africa Maxwell, Interpretation of Statutes Megarry, R.E., Miscellany-at-Law Megarry, R.E., A Second Miscellany-at-Law Megarry and Wade, The Law of Real Property Meredith, Paul, ‘Legislation: Educational Reform’ MLR Vol. 52 Miers and Page, Legislation

Bibliography

225

Namasivayam, S., The Drafting of Legislation Ogden, C.K., & I.A. Richards, The Meaning of Meaning Oliver of Aylmerton, Lord, ‘A Judicial View of Modern Legislation’ [1993] Stat LR Parker, G., ‘Criminal Law – Statutory Interpretation – Use of Parliamentary Debates’, (1982) 60 Can Bar Rev Hood-Phillips, Constitutional and Administrative Law Potter, Simeon, Language in the Modern World Power, Vincent J.G., ‘Parliamentary History as an Aid to Statutory Interpretation’ [1984] Stat. LR. Preparation of Bills, 1948, HMSO Richardson, S., Messages and Papers of Presidents Renton, Lord, The Preparation of Legislation, Cmnd 6035 Rhodes, White and Goldman, ‘The Search for Intent: Aids to Statutory Construction in Florida’, (1978) 6 Fla H.U.L.Rev Sacks, Vera , ‘Towards Discovering Parliamentary Intent’ [1982] Stat LR Samuels, Alec , ‘The Interpretation of Statutes’ [1980] Stat LR Shaw, George Bernard, Man and Superman Stephen, Sir James, Digest of Criminal Law Sutherland, Euan, ‘Clearer Drafting and Timeshare Act 1992: A Response From Parliamentary Counsel to Mr Cutts’ [1993] 14 Stat LR Thornton, G.C.,Legislative Drafting Thring, Lord , Practical Legislation Turnbull, I.M.L., Problems of Legislative Drafting Ullman, Stephen, Semantics: An Introduction to the Science of Meaning Ullman, Stephen, Words and Their Meaning Wade, ‘Covenants – A Broad and Reasonable View’ [1972B] CLJ 157 Walker, The Oxford Companion to Law Williams, Glanville , ‘Language and the Law’, 61 LQR 71 Wurm, S.A., ‘Aboriginal Language and the Law’, 6 Annual Law Review, University of Western Australia

Index Abrogation, doctrine of, 58-59 Acts of Explanation function of, 76 South Africa in, 77-78 Affirmative statutes, 189 Ambiguity of statutes, 42-43 Civil law under, 93 contextual, 43 extrinsic aids to interpretation and, 97 Golden Rule and, 87-88 judicial inventions and, 54-55 Literal Rule and, 86 long titles and, 19-20 ‘may’ and, 37 Mischief Rule and, 84 Pepper v Hart, rule in, and, 110, 112 reasonableness of legislation and, 121-128 semantic, 42-43 syntactic, 42 verbosity, caused by, 177 whole Acts and, 182 ‘And’ or ‘Or’, legal effect of words and, 35-38 Antigua and Barbuda constitutional ouster clauses in. 163-164 Appeal, right of, word ‘shall’ and, 30 Arbitration finality of awards and, 148 Assent, 16-18 Bills to, 14 Canada in, 18 Commonwealth countries in, 17-18 Lord Commissioners, declaration of, by, 11 Norman French, declared in, 11 querying of, 17 Royal Commissions, given by, 17 sovereignty and, 17 validity of, courts’ declaration on, 17 Australia Law Commission reports interpretation aids as, 104-105 Law Reform Committee of Victoria in Plain English and, 12 parliamentary materials, availability of, in, 113 Background information on legislation, 3-4

Barbados constitution, conformity of legislation with, in, 131-132 Bill of Rights parliamentary privilege and, 114-116 Pepper v Hart, rule in, and, 110, 114 Bills, see also COMMITTEE STAGES, DEBATES, DRAFTING, MONEY BILLS, PREAMBLES, PROMOTERS, SCHEDULES amendments of, 14 Parliamentary Counsel, drafted by, 16 refusal of, 15 Assent to, 14 clauses of, 15 guidance notes of officials and, 93 headings, function of, 21 Interpretation Acts and, 195-222 interpretation section in, 22-23, 67-68 long titles of, 19-20 marginal notes, construction, aid to, as, 21 function of, 20-21 memorandum to, 93, 102 Ministers, comments on, 3 money, 17 Notes on Amendments of, 15 Notes on Clauses and, 15, 102 parts of, 22 passing of, 14 readings of, 14 report stage of, 14 sections of, 23-24 short titles of, 19-20 stages in Parliament of, 14-16 Standing Committees of, 15 titles of, 19-20 announcement of, 14 Cabinet, 3 Canada Assent in, 18 Case law, see COMMON LAW, JUDGES casus omissus construction and, 52 drafting and, 61-62 Parliamentary counsel and, 61-62 Certainty judges of, 92

228

precedents and, 55 presumption of, 155 certiorari, 143-144 Barbados in, 131-132 convictions and, 149-151 errors of law and, 149 finality of decisions and, 147-149 judicial review and, 143-151 ouster clauses and, 146 prohibition, compared with, 144-145 Civil law ambiguity under, 93 intention of legislature and, 93 Clauses, Notes on, 15, 102 Commission reports, see also COMMISSIONS OF INQUIRY, LAW COMMISSIONS interpretation, aids to, 103-106 Royal, 17 Commissions of Inquiry interest groups as, 2 reports of, 94 interpretation aids as, 99 Committee of Selection, 15 Committee of the Whole House, 15 Committee on Ministers’ Powers, 95 Committee stage, 14-15 intention of Parliament and, 90 legal history and, 99 mistakes during, 15 Notes on Amendments, 15-16 Notes on Clauses, 15-16 Parliamentary counsel and, 14 Pepper v Hart, rule in, and, 14 Committees cabinet, 3 reports of, 94 interpretation aids as, 99, 104-106 Common law, see also CASE LAW, JUDGES Commonwealth, inheritance of, by, 58-59 customary interpretation and, 68 Ghana in, 59 Heydon’s case, rule in, and, 82-83 importance of, 44-47 intention of Parliament and, 68, 72 knowledge of Parliament and, 74-75 object of, 2 ousting of, 180 presumption of conformity with, 138-139

Index

stare decisis and, statutes, distinguished from, Commonwealth Assent in, Royal Commission, given by, common law, inheritance of, by, constitutions of, Interpretation Act in, Money Bills in, statutes, declarations of illegality of, in, Communication of purpose, Conformity, presumption of, Consistency, Consolidation Acts, amendment of pre-existing law and, consistency of, maxim on, subsequent Acts and, Constitutions Commonwealth, Ghana of, human rights and, illegality of legislation and, Jamaica of, ouster clauses and, presumption of conformity with, validity of legislation under, Construction, see also INTERPRETATION casus omissus and, equitable, liberal, maxim on, marginal notes, aid to, as, rules of clarification of, subsequent Statutes and, whole Acts of, Context, ambiguity and, literal rule and, purposive approach and, Conventions, see TREATIES Convictions certiorari and, Counsel juries, address to,

46 1-2 17-18 17 58-59 56-57 69, 185 17 56-57 44-47 129-138, 172-174 68, 119-120 75 120 120 185 75 56-57 59 132 56 138 147 129-138 17 52 84 181-182 21 68 75 59-62 39-41 43 85-86 97

149-151 11

Index

Courts, see also JUDGES errors by, 143-144 function of, 49-65 jurisdiction of, 141-142 ousting the, 145-147 legislation and declaration of illegality of, 52-58 Criminal offences mens rea needed for, 121 Criminal statutes, 189 Crown presumption against application of Acts to, 175 Culture language and, 10-11 Customs abrogation of, 180 common law and, 68 interpretation and, 52, 68 precedent and, 68 Debates, see also HANSARD, Pepper v Hart Bills on, 14-15 Ghana in, 102 intention of Parliament and, 99 interpretation of statutes and, 13, 89, 101-104 non-admissibility of, 101-102 value of, 98-99 Declaratory statutes, 189 Definitions extensive, 22 Interpretation Acts and, 68-69 restrictive, 22 Delegated legislation, see REGULATIONS Delegation of powers amendment of legislation and, 156-157 ministers’ discretion and, 157-160 Departmental officials interest groups as, 2 Dictionaries, 73-74 Discretion delegation of powers and, 157-160 duty, disguised as, 32 judges of, 55 ‘may’, use of word, and, 32-35 use of, 30 Drafting, see also PARLIAMENTARY COUNSEL

229

casus omissus and, 61-62 instructions on, 4-5 legislative scheme and, 5-6 Parliamentary Counsel by, 3 process of, 5-6 research on, 5 vagueness of, 41 Duties discretion, disguised as, 32 Enabling statutes, 189 English, see also PLAIN ENGLISH statutes first published in, 11 Equity construction of statutes and, 84 function of, 45 intention and, 84 object of, 2 statutes, distinguished from, 1-2 Errors certiorari and, 149 Committee stage, during, 15 Courts by, 143-144 rectification of, 95 Europe interpretation of Acts in, 98, 105 Evidence conclusive evidence clauses and, 155-157 interpretation and, 105 natural justice and, 165 Exclusive remedies, 160-161 Explanation, Acts of, 76-78 Expository statutes, 190 Federal States, see also UNITED STATES legislation of, 1 Finality of decisions arbitration and, 148 certiorari and, 147-149 presumption of, 147-149 public interest in, 154 France travaux preparatoires in, 99 ‘Free’, meaning of, 73, 182 General statutes, 190, 192-193 Ghana common law in, 59 constitution of, 59 debates in, 102 English law in, 59 legislative intent in, 101

230

Golden rule, ambiguity and, function of, intention and, objective standards and, subjective standards and, Government intention of Parliament and, Grey v Pearson, rule in, Guidance notes bills on, Guyana constitutional ouster clauses in, Hansard, see also DEBATES, Pepper v Hart availability of, interpretation and, refusal to consult, resolution on leave to use, Headings, function of, Henry VIII clauses, Heydon’s case, rule in, common law and, intention of Parliament and, judicial interpretation and, promoters of Bills and, rules on interpretation and, Human rights Barbados in, constitutions, conformity with, and, South Africa in, Zimbabwe in, Illegality Commonwealth, declarations of, in, constitutions and, legislation of, declaration by Courts on, ‘Includes’ meaning of, India constitutional ouster clauses and, judicial review and, Instability words of, Intention Bills, promoters of, Committee stage and, common law and, debates and, equitable construction and,

Index

86-88 87-88 82 28-29, 85 88 88 90 82 93 163

113 102-104 97 116 21 156-157 5 82-83 49-50 51 93 81 131-132 132 133-138 136-8 56-57 56 52-58 68 162-163 162-163 43-44 29, 92-93 90 72 99 84

Ghana in, Golden rule and, Government and, Heydon’s case, rule in, and, Interpretation Acts and, judges and, justice and, language, alteration of, and, literal interpretation and, literal rule and, logical interpretation and, meaning of, Parliament of,

101 28-29, 85 90 49-50 72 27, 49-65 95-96 76 67, 81-82 81-82 52, 67 90-96 13, 69, 89-96

Parliamentary Committees and, 90 Parliamentary Counsel of, 91, 93, 96 separation of powers and, 55, 90 statutory definitions and, 72 subsequent Acts and, 76 Interest groups, 2 International law adoption of, 173 doctrine of incorporation of, 173 doctrine of transformation and, 173 precedents and, 173-174 presumption of conformity with, 172-174 Interpretation, see also AMBIGUITY, CONSTRUCTION, HANSARD, PRESUMPTIONS authentic, 67 casus omissus and, 62 consistency and, 68 customary, 52, 68 debates in Parliament and, 13, 89, 101-104 doctrinal, 52, 67 Europe in, 98, 105 evidence on, 105 extensive, 52, 67 extrinsic aids to, 97-117 grammatical, 67, 88 Heydon’s case, rule in, and, 51, 81 history of, 68 Judges, legislation of, 29, 49-65, 79 liberal, 67 logical, 52, 67 modern approach to, 96-97 obiter dictum and, 64-65 objective, 64, 67-80 Parliament and, 67-80

Index

Parliamentary debates and, 13 Parliamentary Ombudsman and, 103 precedents and, 55, 62-65 promoters of Bills and, 89, 92-93 punctuation and, 25, 69 regulations of, 95 remedial, 67 repeals and, 68 restrictive, 52, 67 rules of, 81-117 section, 22-23, 67-68 separation of powers and, 54 subjective, 64 United States in, 97 usual, 52 whole Acts of, 59-62 Interpretation Acts, 68-72 Bills and, 195-222 Commonwealth in, 69, 185 contrary intentions and, 72 Crown, application of legislation to, and, 175 definitions and, 68-69 intentions and, 72 objective test and, 72 presumptive provisions and, 69 Jamaica constitution, presumption of conformity with, 138 Judges certainty and, 92 customary interpretation and, 68 discretion of, 55 errors, rectification of, by, 95 independence of, 56, 141-142 innovation by, 79 intention legislators of, 49-65 interpretation of legislation by, 29, 49-65, 79 inventions of, ambiguities causing, 54-55 jurisdiction of, 141-142 lawmakers as, 55, 90 legislation, filling gaps in, by, 29 unjust, comments on, 56 separation of powers and, 56 social conditions and, 92 Judicial review, 142-172 certiorari and, 143-151 conclusive evidence clauses and, 155-157 exclusive remedies and, 160-161

231

final decisions and, 147-149 grounds for, 143 Henry VIII clauses and, 156-157 India in, 162-163 mandamus and, 144 natural justice and, 165-166 ouster clauses and, 145-147 constitutional, 161-165 prohibition and, 144-145 quo warranto and, 145 regulations on, 156, 159 subjective formulae and, 157-160 time limit clauses and, 152-155 Juries counsel’s address to, 11 Jurisdiction courts of, 141-142 judges of, 141-142 ousting, 145-147 presumption on, 176-177 Justice intention and, 95-96 Language, see also LANGUAGES alteration of, 76 changes in, 75-78 criticism of, 12 culture and, 10-11 definition of, 9 legal, 6-13 United States constitution and, 9 subsequent Acts and, 75-78 Languages English, statutes first published in, and, 11 Latin, language of statutes as, 11, 23-24 Norman French, language of statutes as, 11 Latin language of statutes as, 11, 23-24 Law Commission reports interpretation, aids to, as, 97 Australia in, 104-105 Law Reform Commission of Victoria, Plain English and, 12 Lawful conduct, presumption of, 174-175 Legislative declarations, 76-77 Legislative history, 99-101 interpretation, aid to, as, commissions as, 99 Committee stage as, 99

232

debates as, 99 expense of, 100 Ghana in, 101 materials on, 99 Pepper v Hart, rule in, and, 111-112 previous statutes and, separation of powers and, 100-101 speeches as, 99-100 travaux preparatoires and, 107 United states in, 101 Literal rule, 81-82, 85-86 ambiguity and, 86 Barbados in, 131-132 context of, 85-86 intention and, 67, 81-82 mischief rule and, 86 Pepper v Hart, rule in, and, 111 preambles and, 81-82 Sussex Peerage, rule in, 81-82 Lobbyists, 2 Local statutes, 190 Long title, 19-20 Lords Commissioners Assent, declaration of, by, 11 Malfeasance, presumption against, 174-175 mandamus, 144 Marginal notes construction, aid to, as, 21 function of, 20-21 Maxims, 179-187 Consolidation Acts and, 185 directory enactments on, 184 express enactments on, 183-184 frequent cases on, 180-181 liberal construction on, 181 penal statutes on, 181-182 prospective nature of Acts and, 180 purpose of Acts and, 186-187 reliability of, 179 repeals on, 179-180 retrospectivity on, 180 statutes conflicts between, and, 179-180 same subjects on, 184-185 whole Acts, reference to, and, 182 words on, 182-183, 185, 186 ‘May’, 30-35 ambiguity of, 37 discretion and, 32-35 enacting verbs as, 30-31 purpose of, 32-35 use of, 30 Memorandum Bills to, 93, 102

Index

Cabinet, 3 Mens rea, 121 Ministers comments on Bills by, 3 Committee on Powers of, 95 regulations and, discretion of, 157-160 statements by, 110, 112-113, 115-116 Ministries Committee on Ministers powers and, 95 guidance notes of, 93 sponsors of legislation as, 3 Mischief rule, 81-85 ambiguity and, 84 literal rule and, 86 preambles and, 84 research and, 5 Sussex Peerage case, rule in, 86 Misfeasance, presumption against, 174-175 Money Bills Commonwealth countries in, 17 Natural justice, 165-166 Negative statutes, 190 New Zealand parliamentary materials, availability of in, 113 Non-feasance, presumption against, 174-175 Norman French Assent, declared in, 11 statutes, language of, 11 Notes on Amendments to Bills, 15 Notes on Clauses to Bills, 15 obiter dictum function of, 65 interpretation and, 64-65 Objects statutes of, 2-5 Obsolete Statutes, 58-59 Omissions, 61-62 ‘Or’, see ‘AND’ OR ‘OR’ Ouster clauses, 145-147 certiorari and, 146 classification of, 146-147 constitutional, 161-165 constitutions and, 147 Guyana in, 163 India in, 162-163 non-statutory, 147

Index

time limit clauses and, 152-155 Trinidad and Tobago in, 163-164 Parliament, see also DEBATES common law declarations of, on, 78 knowledge of, and, 74-75 declaration of common law by, 78 intention of, 13, 69, 89-96 interpretation and, 67-80 debates and, 13 judicial innovation in, 79 legislative interpretation in, 78 Parliamentary Committees intentions of Parliament and, 90 interest group as, 2 Parliamentary Counsel Bills, amendments to, drafting by, 16 casus omissus and, 61-62 committee stage and, 14 criticisms of, 6, 13, 49 drafting by, 3 instructions to, 4 intention of, 91, 93, 96 intention of Parliament and, 13 responsibilities of, 4-5 Parliamentary expositions, 76-77 Parliamentary materials availability of, 113 expense of, 113 interpretation aids as, 99 Pepper v Hart and, 110 resolution on leave to use, 116 New Zealand in, 113 Parliamentary Ombudsman interpretation and, 103 Parliamentary privilege, 114-116 Bill of Rights and, 114-116 Pepper v Hart, rule in, and, 110, 114 Parliamentary proceedings interpretation and, 89-96 Parts,function of, 22 Penal statutes maxim on, 181-182 meaning of, 190 presumptions and, 124-125 reasonableness of, 121 retroactivity, presumption against, 166 retrospectivity, presumption against, 166

233

Pepper v Hart, rule in, 90, 108-114 ambiguity and, 110, 112 Bill of Rights and, 110 Committee stage and, 14 legislative history and, 111-112 literal rule and, 111 Ministers’ statements and, 110, 112-113, 115-116 official reports and, 112-113 parliamentary materials availability of, 113 expense of, 113 parliamentary privilege and, 110 purposive approach and, 96-97, 110, 113 White Papers and, 112-113 Perpetual statutes, 190 Personal statutes, 190 Petitions Preambles and, 19 Plain English Law Reform Commission of Victoria and, 12 Policy documents, 104 formulation of, 2-5 Political parties interest group, as, 2 Practice directions, 79 Preambles, 18-19 challenges to, 18 function of, 19 literal rule and, 81-82 Mischief rule and, 84 petitions and, 19 Precedent, 11, 46, 62-65 certainty of, 55 international law and, 173-174 interpretation of legislation and, 55 customary, 68 Pressure groups interest group as, 2 Presumptions, 119-177 alteration of existing law against, 129-138 certainty of, 155 common law, conformity with, of, 138-139 conclusive evidence clauses and, 155-157 consistency of, 119-120 constitutions, conformity with, of, 129-138 equality of treatment of persons of, 122

234

exclusive remedies and, existing law, conformity with, of, finality of decisions, of, injustice, against, international law, conformity with, lawful conduct, of, mens rea and, natural justice, conforming to rules of, ousting the jurisdiction of the courts, against, penal statutes, and, reasonableness of acts of, retroactivity against, retrospectivity against, statutes and as enacted in this Act, shall not be questioned, surplusage of, taxation and, territorial application of, vested rights, interference with, against,

Index

160-161 141 147-149 121-128 172-174 174-175 125-128 165-166 145-147, 152-155 124-125 121-128 166-172 166-172 156 151-152 177 123-124 176-177 121-123, 167

words having same meaning, of, 176 Private statutes, 191 Prohibition, 144-145 Promoters of Bills Heydon’s case, rule in, and, 93 intention of, 29, 92-93 interpretation and, 89-96 ministerial statements and, 115-116 statement of interests by, 101 Public statutes, 191 Punctuation, 25 full stops and, 69 Punitive statutes, 191 Purpose, see also MISCHIEF RULE communication of, 44-47 ‘may’ and, 32-35 maxims and, 186-187 Purposive approach context and, 97 Pepper v Hart and, 96-97, 110, 113 Queen’s speech legislative proposals in, 3 Quia Emptores, 17 quo warranto, 145

ratio decidendi function of, precedent and, Readings of Bills, Real statutes, Reasonableness criminal offences and, mens rea needed to prove, penal statutes of, presumption of, taxation legislation of, vested rights and, Reference statutes, Regulations interpretation of, judicial review and, Minister’s discretion and, Standing Committee on Delegated Legislation and, statutes same effect as, of, validity of, Remedial statutes, Repeals effect of, implied, Interpretation Act and, maxim on, Schedules in, sovereignty and, Report stage, Reports interpretation of statutes and, Pepper v Hart, rule in, and, resolution on leave to use, Republic presumption against application of legislation to, Research cost of, drafting process on, Retroactivity retrospectivity, difference between, Rhodesia in, South Africa in, Sri Lanka in, test for, Retrospectivity maxims on, retroactivity, difference between, test for, types of,

65 62-63 14 191 121 121 121-128 121 121 191 95 156, 159 157-160 95 156 159 191-192 140-141 141 68 179-180 140 179-180 14 98 112-113 116 175 113-114 5 166-172 77-78 77 58 166 180 166-172 166 169

Index

Revised statutes, Rhodesia retrospectivity in, Rights of man, Royal assent, see ASSENT Royal Commissions, interpretation aid as, Royal prerogative, Scandinavia travaux preparatoires in, Schedules forms in, function of, Henry VIII clauses in, repeals contained in, treaties texts of, in, Sections, functions of, Select committees, reports interpretation aids as, Semantics, ambiguity of, Sentences modifiers of, Separation of powers intention of Parliament and, interpretation of legislation and, judges and, legislative history and, natural rights and, Sri Lanka in, travaux preparatoires and, ‘Shall’, enacting verb as, mandatory nature of, meaning of, obligatory nature of, right of appeal and, Short titles, South Africa Acts of Explanation in, constitution of, presumption of conformity with, English law and, human rights in, interpretation in, retrospectivity in, statutes, declarations on validity of, Sovereign immunity,

192 77-78 91-92 17 105 92 99 25 24-25 157 140 106 23-24 105-106 10 42-43 42 55, 90 54 56 100-101 92 58 107 30-35 30-31 31 30 132 30 19-20 77-78 58 133-138 59 133-138 69-71 77 58 173

235

Sovereignty Assent and, 17 errors, rectification of, and, 95 repeals and, 179-180 Special statutes, 192 Speeches Parliament and, 99-100 Sri Lanka separation of powers in, 58 statutes in declarations on validity of, in, 57-58 retroactive, 58 Standing Committee on Delegated Legislation, 95 Standing Committees, 15 stare decisis, see PRECEDENT Statements by ministers, 110, 112-113, 115-116 Statute Book definition of, 1 Statute Law Revision, 140 Statutes alteration of, 129-138 Assent to, 16-18 circumstances of enactment of, 82 classification of, 189-193 common law, distinguished from, 1-2 conflicts between, 179-180 definition of, 1-2 equity, distinguished from, 1-2 interpretation aid as, 99 legislative history of, 94 motives behind, 2 obsolete, 58-59 parts of, see BILLS phrases in, ‘as enacted in this Act’, 156 ‘shall not be questioned’, 151-152 previous, prospective nature of, 180-181 purpose of, 186-187 same subject matter on, 184-185 subsequent, see Subsequent Acts whole Acts ambiguity in, 182 maxim on, 182 meaning and spirit of, 59-62

236

Statutory instruments, see REGULATIONS Subsequent Acts, 74-78 Consolidation Acts and, 75 construction and, 75 language and, 75-78 legislative declarations and, 76-77 Parliamentary expositions and, 76-77 Surplusage, 177 Sussex Peerage Case, Rule in literal rule in, 81-82 mischief rule in, 86 Taxation Pepper v Hart, rule in, and, 108-114 reasonableness of legislation on, 121 Territorial application presumption against application outside jurisdiction and, 176-177 Time limit clauses, 152-155 Titles of legislation announcement of, 14 long, 19-20 ambiguity of, 19-20 nature of measure indicated in, 20 short, 19-20 function of, 19-20 travaux preparatoires interpretation, aids to, as, 97-99, 106-108 France in, 99 Scandinavia in, 99 separation of powers and. 107 United States in, 101 Treaties conformity of legislation with, 173 incorporation of, into national law, 173 interpretation of, 98, 106-108 schedules, texts of treaties in, 106 Trinidad and Tobago constitutional ouster clauses and, 163-164 United States Bill of Rights, 1 Congress, 1, 50 constitution conformity of legislation with, in, 130 legal language in, 9 intention in, 50 interpretation in extrinsic aids to, 97-99, 105

Index

legal language in, 9 legislative intent in, 101 State legislation, invalidity of, in, 57 Vagueness generic character of words and, 38-39 Validity of legislation Assent and, 17 constitutions under, 17 Courts, declarations on, 52-58 Sri Lanka in, 57 United States in, 57 regulations of, 159 Vested rights presumption against interference with, 121-123, 167 reasonableness and, 121 White Papers Pepper v Hart, rule in, and, 112-113 policy formulation and, 2 refusal to consult, 97 Words, 25-28 See also LANGUAGE, ‘AND OR OR’, ‘MAY’, ‘SHALL’ ambiguity of, 38, 42-43 clarity of, 82 colour and context of, 39-41 consistency of, 119-120 definition of, 85-86 dictionaries and, 73-74 emotional responses to, 41 ‘free’, meaning of, 73-74 ‘includes’, meaning of, 68 instability of, 43-44 maxims on, 182-183, 185, 186 morphemes and, 25-26 same meaning, presumption of, 176 vagueness of, 38-39 Zimbabwe constitution, presumption of conformity with, 136-138